EX PARTE LUCIO v. << (2026)

ORDER

Before us is a subsequent application for a writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071.¹

In July 2008, a jury convicted Applicant of the February 2007 capital murder of her two-year-old daughter. See Tex. Penal Code Ann. § 19.03(a)(8). Based on the jury's answers to the special issues submitted pursuant to Article 37.071, the trial court sentenced Applicant to death. This Court affirmed Applicant's conviction and death sentence on direct appeal, and denied relief on the claims raised in her initial Article 11.071 habeas application. Lucio v. State, 351 S.W.3d 878 (Tex. Crim. App. 2011); Ex parte Lucio, No. WR-72,702-02 (Tex. Crim. App. Jan. 9, 2013) (not designated for publication).

After Applicant's attempt to obtain federal habeas relief ended unsuccessfully, the trial court scheduled Applicant's execution for April 27, 2022. On April 18, 2022, Applicant filed the instant subsequent Article 11.071 habeas application, raising nine claims for relief. Therein, Applicant specifically asserts that: but for the State's use of false testimony, no juror would have convicted her (Claim 1); previously unavailable scientific evidence would preclude her conviction (Claim 2); she is actually innocent of the offense (Claim 3); her trial counsel provided constitutionally ineffective assistance (Claim 4); the State suppressed favorable, material evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (Claim 5); the State violated her Sixth Amendment right to be free from uncounseled pretrial interrogation (Claim 6); her conviction and death sentence are tainted by juror misconduct (Claim 7); gender bias tainted her prosecution and contributed to her wrongful conviction (Claim 8); and she is innocent of the death penalty (Claim 9).

After reviewing the record, we determined that Claims 1, 2, 3, and 5 met the requirements of Article 11.071 § 5(a) and therefore stayed Applicant's execution and remanded those claims to the trial court for a merits’ review. We stated that the remaining claims did not meet the requirements of Article 11.071 § 5(a) and should not be reviewed. Ex parte Lucio, No. WR-72,702-05 (Tex. Crim. App. Apr. 25, 2022) (not designated for publication).

While the case was on remand, the parties filed proposed agreed findings of fact and conclusions of law in the trial court recommending that Applicant receive habeas relief regarding Claim 5—her Brady allegation. The trial court signed the agreed findings and conclusions, adopting the parties’ recommendation that Applicant receive habeas relief on Claim 5. However, the agreed findings and conclusions did not address any of Applicant's other remanded claims. In relevant part, the trial court noted that the parties had asked—and it had agreed—to hold Applicant's other remanded claims (i.e., Claims 1, 2, and 3) in abeyance pending our consideration of the agreed findings and conclusions regarding Claim 5. The trial court requested that this Court remand Claims 1, 2, and 3 again only if we did not adopt the trial court's recommendation to grant relief on Claim 5.

We declined the trial court's invitation to engage in piecemeal litigation. See Ex parte Roark, 662 S.W.3d 469, 469–70 (Tex. Crim. App. 2021) (“[W]ithout full presentment and examination of all issues in [an] application, we only invite piecemeal litigation, which is an inappropriate use of the Great Writ. Generally, all of an applicant's claims should be fully developed and ready to be resolved when the record is transmitted to this Court.”). Instead, we remanded the case a second time, instructing the trial court to make findings of fact, conclusions of law, and a recommendation addressing each of Applicant's initially-remanded claims on the merits and then return the record to this Court.

The case has now returned to us from its second remand. No evidentiary hearing was held. The trial court, with the parties’ agreement, has again entered findings of fact and conclusions of law recommending a grant of relief on Applicant's Brady allegation (Claim 5). But see Ex parte Palmberg, 491 S.W.3d 804, 807 n.7 (Tex. Crim. App. 2016) (noting that this Court is not bound by the State's confession of error). Over the State's objection, the trial court has additionally entered findings, conclusions, and a recommendation that Applicant receive habeas relief on her other remanded allegations (Claims 1, 2, and 3).

We decline to adopt any of the habeas court's findings and conclusions, which exclusively reflect Applicant's interpretation of the evidence and are often unsupported. Instead, we take on our role as the ultimate factfinder in habeas cases and dispose of Applicant's remanded allegations based upon our independent review of the record. See Ex parte Reed, 271 S.W.3d 698, 728 (Tex. Crim. App. 2008). (“The case may arise where the nature and number of unsupported findings and conclusions may render the findings and conclusions wholly unreliable and beyond repair. Under such circumstances, we may elect to take it upon ourselves to conduct all of the factfinding and to issue a ruling[.]”).

After careful review, we conclude that the record before us does not support a grant of habeas relief on any of Applicant's remanded allegations. Turning to Claim 1, Applicant has failed to establish by a preponderance of the evidence that the testimony she complains of was false, or alternatively, that it was material. See Ex parte Lalonde, 570 S.W.3d 716, 722 (Tex. Crim. App. 2019). As to Claim 2, Applicant has not shown by a preponderance of the evidence that, if the new scientific evidence at issue had been presented at trial, she would not have been convicted. See Art. 11.073.

Concerning Claim 3, Applicant has not demonstrated by clear and convincing evidence that, “despite the evidence of guilt that supports the conviction, no reasonable juror could have found [her] guilty in light of the new evidence” she has presented in these subsequent writ proceedings. See Ex parte Brown, 205 S.W.3d 538, 545 (Tex. Crim. App. 2006). Assuming that the evidence on which Applicant relies cannot have been previously ascertained with the exercise of reasonable diligence, at best that evidence merely “muddies the waters.” See Ex parte Harleston, 431 S.W.3d 67, 89 (Tex. Crim. App. 2014) (internal quotation marks omitted).

Lastly, regarding Claim 5, Applicant has not established that the evidence at issue was suppressed by the State. She has also failed to demonstrate that this evidence was material to guilt or punishment, in that there is a reasonable probability that, had the evidence been disclosed, the outcome of trial would have been different. See Ex parte Miles, 359, S.W.3d 647, 665 (Tex. Crim. App. 2012).

Claims 4 and 6 through 9 are dismissed as an abuse of the writ, without reviewing the merits of the claims.

IT IS SO ORDERED THIS 24th DAY OF SEPTEMBER, 2026.

CONCURRING OPINION

In 2008, twelve jurors unanimously found Applicant Melissa Lucio guilty of brutally murdering her two-year-old daughter, and they sentenced her to death. Over the next nineteen years, Applicant filed numerous appeals and writs in State and Federal court seeking to have her conviction and death sentence overturned. Her appellate and habeas claims for relief were all repeatedly denied. In 2022, Applicant's execution date was set. Two days before that date, this Court stayed her execution and gave Applicant the opportunity at the eleventh hour to develop newly raised claims for relief. She has not done so.

After reviewing what the parties and trial court have submitted, we find that the evidentiary gaps in her story have not materially changed in the last nineteen years. In this case, the two-year-old victim had cocaine in her system, signs of a serious head trauma, bite marks, and massive bruising over her entire body. And at the end of the day, the baby victim died.

Despite an eleventh-hour opportunity to fill in the evidentiary gaps, Applicant voluntarily waived all live evidentiary hearings by agreement. Applicant simply provided this Court with affidavits to determine if she was entitled to relief. Not a single witness was called. No new law has been decided or promulgated that would justify overturning the jury's verdict. After a thorough examination of the entire record, I join the Court in finding that Applicant's claims are not meritorious. I write separately to explain, in detail, my reasons.

Facts as Adduced at Trial

 The Scene of Mariah's Passing

On the evening of Saturday, February 17, 2007, a team of paramedics were dispatched to a 911 call for “unresponsive pediatric” from a single-story residence on West Lee Street in Harlingen, Texas.¹ Paramedics arrived to find Mariah Alvarez, a two-year-old child, laying face up in the middle of the floor of a dark room.² Mariah was not breathing and had no pulse.³ Furthermore, although Mariah's family (two adults and eight other children) was in the room, none of them were in close proximity to Mariah—she was unattended.⁴

Mariah's mother, Melissa Lucio (Applicant), was standing at a distance and “wasn't even within arm's reach” of Mariah.⁵ Both paramedics found Applicant's “extremely calm” demeanor “so far out of the ordinary,” that the more veteran paramedic specifically noted it in his report.⁶ “She didn't act at all like what I would expect of a mother. Not like any of them that I had ever responded to in my entire career.”⁷

In addition to an absent pulse and lack of breathing, paramedics noted numerous injuries to Mariah. The paramedics observed “[b]ruises in multiple stages of healing over total body.”⁸ During their rapid assessment, they observed:

• Numerous contusions to her lower back

• Deviation of the left eye and pupils in both eyes dilated

• Hematomas present to the head and face

• Contusions on the head

• Bruises on both the left and right hands

• Bruises and scars on both arms

• Bruises to the chest, abdomen, and back lumbar

• Blunt force injury and bruising to both the left and right legs.

• Bruises on both feet

• No electrical activity in the heart.9

Because there was no lividity or external bleeding, paramedics estimated that Mariah had died 20-30 minutes leading up to EMS arrival.¹⁰ Nevertheless, because Mariah was a child, the paramedics initiated CPR and other resuscitation protocols. These procedures, all of which were documented, included pumping air in Mariah's lungs while injecting multiple doses of several drugs into her bloodstream in order to restore a heartbeat.¹¹ Because Mariah was already clinically dead, the paramedics determined that a “scoop and go” was optimal and proceeded to relocate Mariah to the hospital via ambulance while resuscitation efforts continued.¹² Only a handful of minutes had passed from arrival of paramedics to the their decision to transport Mariah to the hospital.¹³

Shortly after the paramedics arrived, Officer Jaime Palafox of the Harlingen Police Department arrived.¹⁴ Because the room was dark, one of the paramedics working on resuscitating Mariah asked Officer Palafox to shine a light on her.¹⁵ While paramedics were cutting off Mariah's shirt with scissors, Officer Palafox saw bruising on Mariah's chest and covering her body.¹⁶ He immediately called for a supervisor who had just walked into the room.¹⁷

Officer Palafox then instructed a backup officer, Officer Robert Mendiola, to go outside and begin gathering information from family members.¹⁸ During this time, Officers Palafox and Mendiola both observed Applicant to be physically calm—“not crying nor distraught.”¹⁹ Whenever a family member would go over to console her, “she would begin to cry automatically, and then stop.”²⁰

Both Officers Palafox and Mendiola very briefly interviewed Applicant to gather information on what happened.²¹ After providing basic identification information, Applicant told them that Mariah had fallen off some stairs—specifically two steps—at the old apartment on Madison St.²² Once crime scene investigators arrived, the family (including the children) were transported to the police station to be interviewed.²³

 Mariah at the Hospital

Meanwhile at the Valley Baptist Emergency Hospital, Dr. Alfredo Vargas—a 30-year veteran emergency room doctor—received a call that a pediatric patient in “full arrest” was on the way.²⁴ He was also informed that paramedics had been doing CPR for more than 25 minutes while on the way.²⁵

When the ambulance arrived, Dr Vargas testified:

I saw a small child unresponsive, looking dehydrated 26 with multiple bruises all over her body. There were various stages of healing. Some were recent, some were older, and some were almost gone. But various stages of healing – and it was – it was unforgettable.27

Having no rhythm on the cardiac monitor, Dr. Vargas attempted to resuscitate Mariah by administering epinephrine through a vein already established by the paramedics.²⁸ However, he was forced to declare her dead after all his resuscitation attempts failed.²⁹

After further inspection visually and by hand, Dr. Vargas noted that there was no obvious injury to the cranial area to suggest Mariah had recently suffered a fall.³⁰

We see children that have fallen and hit their head almost every single day in the emergency room. And usually there is some sign – either a small bruise, small swelling, or large hematoma which is a collection of blood underneath the skull. Sometimes laceration. But usually there is something there, depending on severity ․31

Dr. Vargas also noted massive bruising across and covering Mariah's body.³² Bruises and contusions were observed scattered throughout the back, arms, elbows, and buttocks.³³ These included what Dr. Vargas determined to be multiple bite marks.³⁴ More bruising, abrasions, and contusions were found on Mariah's face and neck.³⁵ And as noted above, he observed that the bruises were in different stages of healing: “some were fresh, some were recent and some were old.”³⁶ As he explained in his trial testimony:

A bruise is a sign of injury. It usually will begin when the blood vessels and—these are tiny blood vessels, and they could be huge, too—but most of them when we look at a bruise there are small vessels inside of the skin. When there is force applied to it those vessels will bust open and bleed. Since they can't return to the central circulation, it just stays there. So initially what you see is, you know, the black and blue mark of a bruise.

As the body heals, it reabsorbs all of this blood. As it's reabsorbing the blood, it then changes colors. And this is a matter of days when a bruise is completely reabsorbed. So it will change from the initial black and it will eventually, all of that blood will just be completely reabsorbed by the body. So this is how you can tell where a bruise is recent or if it's happened in the past several days.37

Dr. Vargas ruled out the possibility that these bruises were caused by resuscitation efforts because, after death, the body doesn't develop bruises but “lividity.”³⁸

In part because the amount of bruising was not consistent with falling down the stairs a single time, Dr. Vargas concluded that Mariah had been severely abused.³⁹

I have never seen anything in 30 years like this. I have never seen a child—and I've seen many, many children and adults also—but this is the absolute worst that I've ever seen.40

 Applicant's Interview

Meanwhile, back at the Harlingen Police Station, detectives began preparing to interview Applicant, Roberto Alvarez (Applicant's husband), and their children.⁴¹ Due to the involvement of young children and their large number, Child Protective Services were also called in.⁴² While two of the older children were old enough to provide statements to the police, the younger children were taken to Maggie's House—the county's children's advocacy center—where proper forensic interviews could be conducted by qualified experts.⁴³ Detective Rebecca Cruz from the Crimes Against Children division of the Harlingen Police Department was called into duty and assigned as the lead detective for the investigation.⁴⁴ While she was interviewing Applicant, Officer Villareal was assigned to interview Roberto Alvarez.⁴⁵

Det. Cruz and another detective mirandized Applicant and began interviewing her shortly before 10 pm.⁴⁶ The interview ended a little after 3 am, with small break in the middle.⁴⁷ Several other detectives, including Texas Ranger Victor Escalon, joined the interview sometime after it had already begun. Applicant began the interview by offering an oral statement providing her narrative of events leading up to Mariah's death.⁴⁸ Per Det. Cruz, Applicant seemed “relieved—there was no emotion.”⁴⁹

Although she was initially called in as a witness, Det. Cruz quickly began to view her as a suspect because “[Applicant's] story kept changing over—within the beginning of her statement.”⁵⁰ Specifically, Applicant was inconsistent on how Mariah sustained her injuries.⁵¹ At the beginning, Applicant denied any involvement.⁵² Early during the interview, Applicant claimed that Mariah had fallen from the third step from the ground level of the old apartment sometime Thursday ⁵³ (two days before) after managing to wander past the apartment front door.⁵⁴ Per Applicant, nobody saw the fall because Applicant and one of her elder children were inside packing for a move to a new apartment, while the other children were playing outside around the corner.⁵⁵ Applicant also connected the time of the fall as preceding an event where Mariah vomited sometime after eating tamales with her father, Robert Alvarez.⁵⁶

When pressed on how this failed to explain all of Mariah's widespread and massive bruising, Applicant claimed that the other children were responsible for them. Applicant claimed they were “picking on her because she was the smallest one.”⁵⁷ However, as the interview progressed, Applicant admitted to “striking the child, biting the child, causing the abrasions and contusions on the child—at least the majority of them.”⁵⁸ She only denied responsibility for the “toe injury and the scratch to the head.”⁵⁹

Applicant voluntarily provided DNA swabs, hair samples, and nail clippings.⁶⁰ A warrant was also obtained for her dental mold impressions.⁶¹ The biological samples were never submitted for DNA analysis, and the dental impressions were never submitted for comparison.⁶²

 Search of the Apartments and Examination of the Stairs

Warrants were issued for the family vehicle, the West Lee address (the new single-story residence) as well as the East Madison address (the old residence).⁶³ The East Madison residence was vacant—no furniture or curtains on the windows.⁶⁴ Det. Cruz and Texas Ranger Escalon examined the stairway to look for any signs of a fall.⁶⁵ They found no blood matter, hair, or any sign that anyone had hit their head.⁶⁶

A search of the West Lee address yielded signs that the residents had just moved in.⁶⁷ However, in one of the bedrooms, police found cocaine use paraphernalia including baking soda (used to dilute cocaine), and soda cans (used to heat up cocaine).⁶⁸ None of the places searched, including the family vehicle, yielded any bodily fluids or signs that Mariah had vomited.⁶⁹

 Applicant's Phone Call “Confession”

On Sunday, February 18, the day after her interview, Officer Villareal and Det. Cruz transported Applicant and her husband Robert to a dental office in Brownsville to get Applicant's teeth impressions.⁷⁰ During the journey, Applicant asked the two police officers if she could use one of their cell phones to call her sister.⁷¹ Offered one of the officer's cell phones, Applicant made a call to her younger sister, Sonia Chavez.⁷² During the course of the conversation, per Officer Villareal, Applicant said the following to her sister in an “agitated” tone: “Don't blame Robert. This was me. I did it. So don't blame Robert.”⁷³

Testifying in Applicant's defense, Sonia verified that the phone call took place.⁷⁴ However, she denied that Applicant ever made the incriminating statements as heard by Officer Villareal.⁷⁵ Sonia also testified that while Applicant often verbally threatened physical punishment, Applicant never spanked or otherwise laid a hand on any of the children.⁷⁶ Sonia contradicted herself, however, when she testified that the following exchange took place during the phone call with Applicant:

Sonia: She's like: I would spank the kids. I went: No, Melissa, you would never spank the kids. She's like: yes, I would spank them. And I'm like: No, you never spank the kids. She never spank the kids. She's like: Yes, Sonia. At the end, I would spank the kids. No. She's like no – I said: No, she never spanked the kids. And then she said: They are trying to charge me, but Robert would never spank the kids. That was –

Attorney: And that was your conversation?

***

Sonia: That was our conversation.77

Sonia testified to other indicators that Applicant was not abusive towards Mariah. Sonia testified that she saw Mariah several times at family gatherings in the months leading up to her death including Thanksgiving, the second week of December, and New Year's.⁷⁸ Per Sonia, Mariah always seemed happy and healthy whenever Sonia saw her.⁷⁹

However, Sonia admitted under cross-examination that she did not have a close relationship with Mariah.⁸⁰ Furthermore, Sonia admitted that Mariah was always wearing clothing that covered most of her body.⁸¹ Thus, Sonia would not have been able to notice if there were any bruises or injuries to her arms, legs, or torso.⁸² Finally, when Sonia saw Mariah during a less-than-an-hour-long visit on New Years, Sonia admitted that Mariah was asleep on the dining room sofa for the entirety of the visit.⁸³

 The Autopsy Findings

Starting that same Sunday (February 18) and stretching into Monday, Dr. Norma Farley, the Chief Forensic Pathologist for Cameron and Hidalgo Counties, performed an autopsy on Mariah's body.⁸⁴ Although most autopsies averaged around one and a half hours, Mariah's autopsy took approximately six hours to complete due to the extensive trauma to her body.⁸⁵

This child was severely abused. I mean, it would have been evident to a first year nursing student․ And we've all had bruises. So you kind of know what they look like. But this child had bruises all over the body. I mean – all over.86

The autopsy began with an external examination which took roughly four hours in order to properly document the externally visible injuries.⁸⁷ Dr. Farley noted numerous contusions (bruises) and abrasions (scrapes). Most of the injuries were contusions, and of those, most of the contusions were fairly new.⁸⁸ Dr. Farley differentiated the older contusions from the more recent ones because the older ones were turning green, brown, or a really deep purple in color.⁸⁹ She was also able to conclude that much of the bruising occurred around the same time as the blunt force head trauma.⁹⁰

[hand-drawn depictions extracted from Dr. Farley's autopsy report (State's Exh. 36)]

During the external examination portion of the autopsy, Dr. Farley observed and testified to the following:

Face – Multiple contusions and scattered abrasions on the face.91

Again, you can see the contusions, kind of deep maroon look. There's one that comes across the right forehead and down unto the right cheek. You see another one under the right eye, on the right cheek. There's also one on the left cheek, and left forehead as well, and then on the mid forehead. And then all of the abrasions on the face as well – other areas of the face.92

Scalp – Little scabbed areas in the scalp and it was very thin.93 “It looked like the hair had been pulled, basically, and then there was a little blood scab in that area.”94 “Some of the hair is missing there [pointing at St. Exh. 30] and in the other areas of the scalp.”95

Ears – Contusions on both tops of ears: “like a pinching․ [B]oth sides have these contusions, and it's pretty much in the same area.”96

Arms – Contusions found on arms and forearms—“even the hands had contusions on them.”97 A possible bite mark was observed on the left upper arm.98

Torso – Obvious adult-sized bite marks observed on the upper right back—“contused, bruised, and abraded.”99 Dr. Farley described it as “like dragging of the teeth across the back,” and “bite with raking, where it pulls the flesh off the back.”100

Bruising on upper torso (back portion) appearing on right side, and on arms.101

Legs – Numerous contusions noted. Abrasions and contusions on the back part of the legs. “Patterned abrasions on right calf and left thigh.”102 Front of one leg had “long, oval appearing contusions” where they “look like fingers” from a “slap, or a very intense grab.”103

Groin – Subcutaneous hemorrhage, abrasions, and scars on the buttocks.104 Three abrasions were also noted in the vaginal area.105

Once the external examination concluded, Dr. Farley continued with an internal examination which involved opening the body and skull to examine the internal organs and the brain.¹⁰⁶ The internal examination was even more revealing.

Head – multiple contusions to the scalp that were not very visible from the exterior.107 They were located in the left frontal, temporal, parietal, and occipital regions.108 The scalp contusions ranged from small up to 2.5 cm and were “all over the scalp.”109

Subdural hemorrhages (blood between the brain and skull), “acute and multifocal,”110 and acute subarachnoid hemorrhages (blood sitting on the brain itself ) were observed.111 As they were opening the skull, blood started coming out.112 Even after the skull was opened, there was still a lot of blood on the left and right sides due to tears in the cranial cavity blood vessels.113 Dr. Farley concluded that these hemorrhages were inflicted roughly within a 24-hour period from death after a close examination of the tissue.114 Dr. Farley additionally noted multiple scalp hemorrhages, cerebral edema (brain swelling), and “anoxic-ischemic encephalopathy, diffuse” (widespread brain injury related to lack of oxygen or bloodflow).115

Spinal Cord – Subdural blood found around the spinal cord.116 Blood in the neck, thoracic, and lumbar area—most likely from the blows to the back and abdomen.117

Lungs – Lung contusions on both lungs—bruising to the organ itself.118 Injuries to the lungs can be caused by punches, stomps, or slams.

Kidneys – Contusion to the right kidney. Injuries to the kidneys can be caused by punches, stomps, or slams.

Arms – Left arm (humerus) has spiral fracture in a stage of healing. Spiral fracture estimated to be between approximately 7-14 days old based on the new blood vessel formation, reabsorption of blood, and disappearance of inflammatory cells.119 “New bone formation is prominent.”120 The fracture was seen on X-ray but also confirmed visually after removing the left humerus.121 Time of injury is not contemporaneous to the head trauma.122

Eyes – Sunken eyes indicating dehydration.123 Retina detached and folded unto itself—sign of significant trauma.124

Retinal hemorrhages present—hemorrhages around both of the optic nerves (indicating something “traumatically wrong” with the eyes) present.125 Optic nerve hemorrhages are suggestive of non-accidental head trauma. Per Dr. Farley, such hemorrhages are uncommon even when someone is severely beaten.126

Due to the level of trauma, the eyes were removed and sent to an ophthalmic pathologist for further examination.127

Dr. Farley also noted that Mariah's body height was less than the fifth percentile for her age and approximately at the 30th percentile for body weight for her age.¹²⁸ Toxicology was also performed on Mariah's postmortem blood to reveal the presence of benzoylecogonine—a cocaine metabolite—indicating that Mariah had been “very recently exposed” to cocaine before death.¹²⁹ Dr. Farley concluded that the cause of death was from blunt force head trauma.¹³⁰ Based on their coloration, she also found that a majority of the bruising on the body occurred around the same time as the head trauma.¹³¹ In her written autopsy report, Dr. Farley concluded:

It is my opinion that [Mariah], a 2-year-old female child, died as the result of blunt force trauma. At autopsy, there is evidence of significant blunt force head trauma with multiple contusions and abrasions involving the head, multiple scalp hemorrhages, cerebral edema, and subarachnoid and subdural hemorrhage (blood around the brain and blood between the brain and skull). The findings in the eyes are also highly suggestive of non-accidental trauma. Other autopsy findings are listed above and include contusions involving both lungs and right kidney, a healing fracture of the left humerus and multiple abrasions and contusions to the body. Dehydration present and confirmed by vitreous electrolytes. The manner of death is homicide.132

At trial, Applicant sought to defend against the Dr. Farley's autopsy results by presenting her own medical expert, Dr. Jose Kuri, a board-certified neurosurgeon with a half-century of experience.¹³³ In his testimony, Dr. Kuri questioned whether Dr. Farley's finding that 24 hours was the maximum time-period for Mariah's blunt force head trauma to cause her death.¹³⁴ A more accurate assessment, per Dr. Kuri, depended on a variety of factors including patient history.¹³⁵ Nevertheless, Dr. Kuri could not contradict Dr. Farley and agreed that the cause of death was blunt force trauma to Mariah's head.¹³⁶

 Applicant's history with Child Protective Services

During trial, it was revealed that Child Protective Services had an extensive history with Applicant and her family.¹³⁷ CPS conservatorship worker Joanne Estrada was called to testify for both the State and the defense.¹³⁸ CPS Specialist Ila Amanda De La Garza also submitted an affidavit of her knowledge of Applicant's history with CPS which was admitted into evidence.¹³⁹

Per CPS Specialist De La Garza, CPS involvement with Applicant and her family stretched back to a report of neglectful supervision in 1998 that could not be validated.¹⁴⁰ Since then, and until the day of Mariah's death, numerous reports to CPS (mostly for neglect) were made although not all of them were able to be validated.¹⁴¹ Notably, in November of 2000, physical abuse of her then-newborn son was validated after both Applicant and her newborn tested positive for cocaine.¹⁴² In June of 2003, another report of physical abuse was made, but was found to be indeterminable.¹⁴³ However, a report for neglectful supervision was validated that same month and then again for another report in January of 2004.¹⁴⁴

A report was received in August of 2004 (just prior to Mariah's birth and three years before her death) alleging physical neglect and neglectful supervision of numerous children by both Applicant and her husband Robert.¹⁴⁵ Per the report, Applicant and Robert were heard “screaming at their children and calling them derogatory names.”¹⁴⁶ The report also asserted that the younger children were unsupervised while outside for hours at a time; all the children were not fed; and that the home was filthy.¹⁴⁷ Finally, the report also claimed that Applicant and her husband were selling their food stamps to pay the bills.¹⁴⁸

Specialist De La Garza investigated the report in early September of 2004 (just days after Mariah was born) and interviewed eight of the children including two of the older daughters attending middle school.¹⁴⁹ When asked, the children denied any physical discipline and drug use.¹⁵⁰ The older daughters, when asked, also denied the allegations.¹⁵¹

Applicant was also interviewed. Applicant informed De La Garza that the five older children were fathered by Guadalupe Lucio while her husband, Robert, was the father of the seven younger children.¹⁵² Applicant told De La Garza that she had made arrangements for Lucio to take responsibility for the older children.¹⁵³

Later that same month, another report was made against Applicant and her husband for the neglectful supervision of newly born Mariah.¹⁵⁴ The report alleged that Mariah was in a chaotic home that was overly crowded.¹⁵⁵ It also alleged that Applicant had a long history of drug use, “including 2 prior pregnancies where both [Applicant] and her newborn infants tested positive for cocaine use at the time of the birth.”¹⁵⁶

De La Garza made a second home visit in late September 2004, and found the home filthy and unsafe.¹⁵⁷ There was also little-to-no food readily available.¹⁵⁸ Five of the children ranging from 1-4 years-old were dirty, unbathed, and had numerous insect bites.¹⁵⁹ Notably, the three-year-old child had a “bitemark the size of two quarters on his left shoulder” in addition to scratches on his face.¹⁶⁰ De La Garza observed Mariah to have tremors. Applicant also tested positive for cocaine, although she denied drug use.¹⁶¹

As a result, CPS had the children removed from Applicant's care with CPS acting as their managing conservator.¹⁶² Three were sent to live with their father, Guadalupe Lucio, in Houston and the others, including Mariah, were sent into foster care. While in foster care, these children were monitored by Joanne Estrada in her role as a CPS conservatorship worker.¹⁶³ Mariah and a number of her siblings remained in foster care for two years before being returned to Applicant's care in November of 2006 (roughly three months before her death).¹⁶⁴

Procedural History and the Road to Applicant's Current Writ

Applicant was tried and found guilty of capital murder by a unanimous jury in 2008.¹⁶⁵ The jury answered special issue number one “yes” and special issue number two “no” unanimously. Accordingly, the trial court sentenced Applicant to death.¹⁶⁶ Subsequently, Applicant's trial was directly appealed to this Court for review.¹⁶⁷ This Court affirmed the conviction and sentence with no dissenting opinion after finding no reversible error, including (1) that defendant's statements under U.S. Supreme Court precedent were voluntary, and (2) that the evidence was sufficient to support both the conviction and the jury's affirmative answer to future dangerousness.¹⁶⁸

Applicant filed a writ of habeas corpus and was denied relief on the merits.¹⁶⁹ The habeas judge, the same judge who presided over Applicant's trial, submitted a Findings of Fact and Conclusions of Law that explicitly found no merit to her claims in detail which this Court adopted as the ultimate fact finder.¹⁷⁰ While Applicant's first habeas petition was still pending, Cameron County elected a new district attorney to office in 2013. Applicant petitioned the U.S. Supreme Court (certiorari) for review but was denied.¹⁷¹ Applicant subsequently sought federal habeas relief. Ultimately, the Fifth Circuit denied relief en banc.¹⁷² And further review was precluded when certiorari was again denied by the U.S. Supreme Court.¹⁷³ The State then set her execution for late April 2022.

However, shortly before her execution date in 2022, Applicant moved to stay the execution and filed her first subsequent writ of habeas corpus under Article 11.071.¹⁷⁴ This Court found that Applicant's subsequent writ met the requirements of Section 5(a) which would otherwise bar subsequent applications for habeas relief.¹⁷⁵ And if conclusively proven true, this Court also found several of her claims on subsequent writ made a prima facie case for relief.¹⁷⁶

Thus, this Court granted habeas review on four of her nine claims. Additionally, in order to give Applicant time to hold evidentiary hearings and meet her burden of proof, this Court granted a stay of her execution.¹⁷⁷ Applicant's claims were remanded to the trial court for further development of the evidence beyond that contained in the trial record.¹⁷⁸ Nevertheless, while Applicant was given the opportunity to develop the record further with live hearings in the habeas court below, Applicant waived all live evidentiary hearings.¹⁷⁹ And this was done via agreement with the district attorney.¹⁸⁰

Addressing only the Brady claim, the habeas court submitted the recommendation that Applicant be given a new trial. In submitting this complete about-face, the habeas judge, who also presided over the trial, completely contradicted his own foundational factual findings and recommendation to deny Brady relief in Applicant's first writ.¹⁸¹ This Court, rejecting the potential for piecemeal litigation, remanded the case to the habeas court a second time to address Applicant's remaining three claims.¹⁸² The habeas court, again without holding any live evidentiary hearings, issued findings recommending habeas relief on all four claims, which included actual innocence. In consequence, Applicant's petition for writ has been forwarded to this Court with little-to-no further development (despite a last-minute opportunity) since her eleventh-hour motion for a stay of execution was granted.

Applicant's Writ of Habeas Corpus

On the current subsequent writ, we found only four of Applicant's claims as being eligible for review under Section 5 of the Texas Code of Criminal Procedure.¹⁸³ These include the following broad claims:

Claim 1: But for the State's use of false testimony, no juror would have voted to convict Applicant.

Claim 2: Previously unavailable scientific evidence would preclude Applicant's conviction.

Claim 3: The scientifically valid evidence shows there was no murder and Applicant is actually innocent.

Claim 5: The State violated Applicant's right to Due Process when it suppressed evidence favorable to her defense (violating Brady v. Maryland)184 that was material to both liability and sentencing.185

 Applicant's claims in more detail

In Claim 1, Applicant alleges that Dr. Farley gave false testimony regarding the timing of Mariah's injuries, failed to consider alternative causes for those injuries (including the observation of multiple bitemarks on Mariah), and was inappropriately influenced by law enforcement before she produced her autopsy report and conclusions.¹⁸⁶ Applicant also alleges that Texas Ranger Escalon gave false testimony regarding his observations of Applicant's demeanor during her interview.¹⁸⁷

In Claim 2, Applicant alleges that new scientific evidence exculpates Applicant. She alleges that new evidence shows how Mariah's fall down the stairs was the true cause of death. Applicant also asserts that Mariah suffered from a clotting disorder unknown to Applicant and her family at the time. Applicant claims that this clotting disorder explains the massive bruising to Mariah which was misused by the State as evidence of non-accidental trauma.¹⁸⁸ Applicant also offers expert affidavits demonstrating that her confession was falsely induced by a combination of confirmation bias and aggressive interrogation tactics. Applicant also alleges that a new scientific understanding of false bitemark evidence, unavailable at the time of trial, undermines the bitemark evidence that the State relied on at trial.¹⁸⁹

In Claim 3, Applicant alleges that she is actually innocent based on the new evidence and inferences derived from the above two claims. And based on the new evidence, Applicant argues that “no rational juror would have found [Applicant] guilty beyond a reasonable doubt.”¹⁹⁰

In Claim 4, Applicant alleges that the State violated their obligations to “learn about” and then disclose favorable material or otherwise suppressed them under Brady v. Maryland.¹⁹¹ Specifically, Applicant complains that police excluded certain CPS records that corroborated Applicant's account that Mariah fell down the stairs. Applicant also alleges that prosecutors participated in intentional conduct in suppressing evidence showing that:

• eyewitness testimony that Applicant did not abuse Mariah or any other children; and

• awareness of other family members that Mariah had fallen down the stairs.192

• Mariah's siblings saw Mariah's health decline over the last two days since her alleged fall down the stairway.193

• Mariah's dehydrated state was not Applicant's fault because she tried to get Mariah to drink water.

• Mariah had not shown signs of injury to her arm in the weeks prior to her death.

• Applicant had not been unemotional about Mariah's death.

• A witness who claimed she saw bruises on Mariah much earlier would have been impeached by her husband who did not see them, and by a CPS investigation that failed to corroborate her account.

• A prosecutor debriefed therapist Beto Juarez about his interviews with Applicant.194

Claims 1, 2, and 3

 Postconviction Writs of Habeas Corpus and False Testimony Law

“On postconviction review of habeas corpus applications, the convicting court is the original factfinder and this Court is the ultimate factfinder.”¹⁹⁵ When they are supported by the record, we defer to the convicting court's findings of fact and conclusions of law.¹⁹⁶ If the record does not support the convicting court's findings, however, we may exercise our authority as the ultimate factfinder to make contrary or alternative findings or conclusions.¹⁹⁷

“Ordinarily, to prove a false-evidence claim, the applicant must first show that the evidence in his or her case was false, and second that the false evidence was material to the applicant's conviction or punishment.”¹⁹⁸

To establish falsity, the record must contain some credible evidence that clearly undermines the evidence adduced at trial, thereby demonstrating that the challenged testimony was, in fact false. While various types of evidence may serve to demonstrate falsity, the evidence of falsity must be “definitive or highly persuasive.” That said, the testimony need not be perjured in the penal-code sense for it to be false in the due-process sense—it is sufficient if, considered in its entirety, the witness's testimony left the jury with a false or misleading impression. On habeas, the applicant has the burden to show falsity by a preponderance of the evidence.199

 Actual Innocence Law

“Establishing a bare claim of actual innocence is a Herculean task.”²⁰⁰ This is because the applicant is challenging a presumably error-free trial “with the full panoply of protections that our Constitution affords criminal defendants.”²⁰¹ “A conviction that results from a constitutionally error-free trial is entitled to the greatest respect.”²⁰² “Thus, in the eyes of the law, [the applicant] does not come before the Court as one who is ‘innocent,’ but, on the contrary, as one who has been convicted by due process of law ․”²⁰³

In order to succeed, the applicant must provide newly discovered evidence that “was not known to the applicant at the time of trial and could not be known to him even with the exercise of reasonable due diligence.”²⁰⁴ Accordingly, applicant must show that the evidence he presents on writ is newly discovered, and also show it is evidence tending affirmatively towards his innocence.²⁰⁵

Post-conviction relief will only be granted, under the weight of this Herculean burden, when the applicant establishes “by clear and convincing evidence that, despite the evidence of guilt that supports the conviction, no reasonable juror could have found the applicant guilty in light of the new evidence.”²⁰⁶ “The applicant ‘must do more than merely raise doubts about his guilt—he must produce “affirmative evidence” of innocence.’ ”²⁰⁷ We analyze “the probable impact of the newly available evidence upon the persuasiveness of the State's case as a whole, ․ we must necessarily weigh such exculpatory evidence against the evidence of guilt adduced at trial.”²⁰⁸ “Relief is warranted when ‘the totality of the new evidence of innocence unquestionably establishes that a jury would not have found the defendant guilty in light of the new evidence when weighed against the old evidence establishing guilt.’ ”²⁰⁹

 “False” testimony – Dr. Farley

Applicant first asserts that Dr. Farley gave false testimony and that her medical findings were result-oriented because she was improperly influenced by Texas Ranger Escalon and Detective Cruz beforehand.²¹⁰ Specifically, Applicant alleges that Dr. Farley reached her conclusion prior to finishing the autopsy because she was told by Ranger Escalon and Det. Cruz about Applicant's confession while they were all in the autopsy suite.²¹¹ As “proof” of this inappropriate influence, Applicant cites to Det. Cruz's and Ranger Escalon's trial testimonies where both testified that they formed the belief that Applicant was guilty of causing her daughter's death based on her interview.²¹²

However, this does not “prove” that either of the law enforcement officers said or did anything to inappropriately influence Dr. Farley. While they may have watched portions of the autopsy, there is no testimony or other evidence that either officer ever told Dr. Farley about Applicant's confession prior to Dr. Farley's completion of the autopsy or forming her medical conclusions. Nor does this “prove” that such a communication (or any conclusions that law enforcement relayed to Dr. Farley) would have inappropriately influenced Dr. Farley somehow. Applicant presents us with nothing more than pure speculation and fails to demonstrate falsity.

Furthermore, Dr. Farley's conclusion that Mariah's injuries (the presence of massive bruising, missing hair and scalp contusions, suspected bite marks, a broken arm, combined with evidence of blunt force trauma to the head) were non-accidental is not so outlandish that it must be conclusory and result-oriented. Dr. Vargas, a 30-year emergency room veteran, independently reached a similar conclusion based on an external examination and a skeletal survey (via X-rays).²¹³ In his testimony, Dr. Vargas concluded that Mariah was the victim of severe abuse. Given the amount of bruising, Dr. Vargas further asserted that Mariah's injuries were not consistent with a single fall down the stairs.²¹⁴ Additionally, Dr. Vargas asserted that Mariah was “the absolute worst that [he's] ever seen.”²¹⁵ Moreover, in the written analysis of Dr. Farley's work by another medical expert:

[T]o conclude that Dr. Farley clearly failed to consider all of this information in her analysis, and, thereby, provided false testimony at trial, is, in Dr. De Witt's opinion, excessive, if not unfounded. According to her testimony, Dr. Farley did consider the possibility of a fall, made her evaluations, and provided her opinion based on historical and investigative information, her own complete and detailed autopsy findings, and the examinations of two other pathology experts. Moreover, the record at the time of autopsy and trial is replete with evidence of abusive and negligent living conditions.

Lucio's experts also provide published data on the issue of “confirmation bias” ․ even suggesting that Dr. Farley, a forensic pathologist with 14 years of experience at the time, was prejudiced or intimidated by the presence of two police investigators at autopsy. The idea that the presence of police investigators at an autopsy would intimidate a Forensic Pathologist is absurd.216

Applicant again fails her burden to show how Dr. Farley's testimony was provably false or that she somehow left a false impression as to how she arrived at her medical opinion that Mariah's injuries and death were the product of abuse. And given the objective disparity between the magnitude of Mariah's injuries and Applicant's explanation and the reinforcing nature of Dr. Vargas's testimony, it cannot be said that anything Dr. Farley testified on this issue materially altered the inevitable path of the trial.

 From Falling a Few Steps to Falling Down the Stairs—An Evolving Story

In support of her claims of actual innocence and Dr. Farley's “false” testimony, Applicant next points to an event that allegedly happened days prior to Mariah's death.²¹⁷ Specifically, Applicant asserts that Mariah fell down what must have been an entire flight of stairs outside their former second story apartment on East Madison Street.²¹⁸ Applicant claims that this fall down an entire flight of stairs is the true cause of the inevitably lethal blunt force trauma to the head and extensive bruising.²¹⁹ Applicant claims that Dr. Farley (and other State witnesses) ignored this alleged event and were, thus, too quick to discount the possibility of an accidental cause of death.²²⁰

However, the record shows that Dr. Farley fully considered the potential injuries that could be inflicted from a fall down the stairs, and then ruled it out. Short of a “Dick Van Dyke” style fall—an event Dr. Farley deemed highly improbable—a fall down even a full flight of stairs did not explain the massive amount of bruising to the body.²²¹ Even when limited to just the injuries to the head, Dr. Farley found the injuries too widespread to be the result of a single fall.²²²

More notably, there is a great amount of uncertainty surrounding the alleged fall. Applicant's current narrative of this fall down a flight of stairs is problematic and inconsistent with past accounts. The answers to when it allegedly happened, how many stairs Mariah may have actually fallen, whether anyone witnessed it, and even where it happened have evolved over time.

On Saturday, February 17, 2007, the evening of Mariah's death, Applicant was interviewed very briefly by Officer Palafox upon his arrival as one of the first officers on the scene.²²³ During that interview, Applicant told Officer Palafox that Mariah had fallen down “two steps” at their prior apartment on Madison.²²⁴

Later that evening, Applicant was interviewed again at the police station. At the beginning of the interview, she told police a similar story with more details temporally tied to an event where Mariah vomited after eating tamales.

Applicant: No, she was not ill. The—we—let me see. Friday morning [February 16], we had–my husband had bought tamales at HB [phonetic] and she had like two or three tamales. And we went to—we were moving from our previous place to the—where it is now. And we were out driving around. And she, she kept on moaning, you know, like something hurt her․ And while he [her husband] was off the car— I think he was at the store or something—she threw up on me. And it was a lot of orange stuff․

So yesterday [Friday, February 16] we were – we were moving. We were moving from the – place, from the previous place to this new place. And she had fell down the stairs. It was like maybe three stairs because my, my husband had taken my old – my second to oldest daughter—

Det. Cruz: [Interposing] You saw her fall?

Applicant: No, I didn't see her fall but when I – because the – me and my older daughter were inside getting all the stuff from the living room to the kitchen.

Det. Cruz: Which older daughter?

Applicant: Alexandra.

***

Det. Cruz: And you? How about your, your husband? Was he there?225

Applicant: No, he was not there because that's when we – he was taking the stuff over to the new place on 117 Wesley Street.

Det. Cruz: How do you know that she fell down?

Applicant: Because I did not lock the screen door “cause she never does this. She never goes outside. And I guess she would hear the kids playing outside and she went outside. And when I was calling out for her because I was bringing stuff from the bedroom and the living room to the kitchen, I did not see her. So I went downstairs and she was getting up on the floor. But, you know, she was crying but not, you know, like heavy crying.

***

Det. Cruz: And you're assuming that she fell only three steps how?

Applicant: Well, because I mean I figured if she would have fell from all the way upstairs down, you know, she would have been, you know, crying louder.226

When questioned if she heard any crying, Applicant stated that she did not hear any crying from Mariah until she went outside.²²⁷ Other than “just bleeding from her tooth on the bottom,” Applicant claimed she did not notice any markings on her as the result of the fall.²²⁸

Although Applicant initially indicated the fall happened Friday morning, she changed her story to the fall happening on Thursday based on a changed timeline on when Mariah vomited:

Applicant: It was Thursday because we –

Det. Cruz: Thursday?

Applicant: It was Thursday, Thursday.

Det. Cruz: Okay. So your daughter ended up vomiting from the tamales on Friday? Or was it Thursday?

Applicant: No, it was Thursday ‘cause Friday we were already there [at the new residence], so.

Det. Cruz: This was in the morning, right? She was already sick. She was already throwing up over the tamales?

Applicant: Thursday, Thursday.

***

Applicant: She only threw up one time.

Det. Cruz: All right.

Applicant: And she was fine Thursday because I remembered Thursday night—okay, Thursday afternoon she threw up․

Det. Cruz: So it wasn't in the morning? It was in the afternoon?

Applicant: That she threw up?

Det. Cruz: Mm-hmm.

Applicant: Mm-hmm.229

We note here that Applicant's timeline of the tamales event is inconsistent with Alexandra's (Applicant's then-16-year-old daughter's) sworn statement made on February 17, 2007.²³⁰ Signed the same day as Mariah's death, Alexandra stated that Mariah had gotten sick after eating a tamale “yesterday [Friday, February 16] when she went outside with my mom.”²³¹

Applicant's husband, Robert Alvarez, was simultaneously being interviewed by police in another room. During that interview, he provided a another accounting of Mariah's fall. On Friday, February 16, during his second trip to move belongings to their new apartment on Lee Street, Applicant informed Robert that Mariah had just fallen from near the bottom of the steps.²³²

Robert: But I didn't see when she fell. - - because she fell because the kid - - [I don't know este. Eso es lo que me han dicho. – I don't know uhm. That is what I was told.] [Spanish audio 00:16:29-00:16:31].

Det. Villareal: Okay.

Robert: - - wife, she fell upstairs.

Det. Villareal: When did she tell you this?

Robert: - - yesterday [Friday, February 16].

Det. Villareal: About what time?

Robert: When I was moving—I came back for, like second round.

***

Robert: [La mire y todo estaba bien. – I looked at her and everything was fine.] [Spanish audio 00:17:01-00:17:03]. She looked all right. She didn't look like - - .233

***

Det. Villareal: Okay. So what did she tell you?

Robert: She just told me [que se habia caido nomas – just that she had fallen] [Spanish audio 00:17:39-00:17:41] after the kid, we're running around and everything [y que no la ha mirado – and that she didn't watch her.] [Spanish audio 00:17:44-00:17:44] and this and that—because she was like—

[brief interruption due to change from end of recording to new recording]

-- like when she went all the way down but right, right toward the end, she fell.

***

Robert: You go down little by little, little by little.

Det. Villareal: Little. And she was working, working her way down.

Robert: Yeah. [Y y en vez de bajar toda, hay cemento, you know – And and instead of getting all the way down, there is concrete, you know.] [Spanish audio 00:00:18-00:00:21].

Det. Villareal: Okay. So did you ask her from where – from which step she․

Robert: She said like the third or second step.

Det. Villareal: To reach the bottom.

Robert: Uh huh.

Det. Villareal: Not the top.

Robert: Not the top. Not the top.234

The date of Mariah's alleged fall has continued to evolve. The newer asserted timelines, moreover, are inconsistent with initial accountings closer in time to Mariah's death. On habeas, Applicant asserts that Mariah's fall now happened on the morning of Thursday, February 15, two days before Mariah's death.

On [Thursday,] February 15, 2007, Ms. Lucio and her nine children ․ were preparing to move from their second-story apartment to a new home․ Ms. Lucio helped some of the children get ready for school, and others ran outside to play while she focused on packing. Mariah and Alexandra stayed inside with her. At some point, Mariah managed to open the unlocked screen door to the set of dilapidated stairs outside.235

However, this is inconsistent with other accounts of when the fall took place. Robert Alvarez's interview with the police revealed that he had already picked up the kids from school by 5:00 pm on Friday when he began moving.²³⁶ Thus, the children had all returned from school by the time he was on his second round of transporting belongings to the new apartment.²³⁷ And according to Robert Alvarez, Mariah's fall took place sometime while he was making the second trip on Friday, February 16, 2007, with Richard, Rene, and Selena travelling with him.²³⁸

The inconsistencies between different accounts do not stop there. While incarcerated, Applicant participated in regular counseling sessions. An excerpt of some of the notes for these counseling sessions were provided by Applicant in support for her application for habeas relief. In a counseling session on April 10, 2008, Applicant gave yet another narration of events.²³⁹ While the details surrounding the fall remained the same, the details of when she informed her husband (and everybody else) changed.²⁴⁰ Per the session notes:

[Applicant] stated that after her child fell, she was still awake and nothing really seemed wrong with her, so instead of getting her to the hospital, she wanted to not say anything because she was afraid that if she told her husband what had happened, he would have attacked her verbally telling her how she was not a good mother. So she decided to let it go. Obviously, the wrong decision and now she is in this mess. She again stressed that she does not understand why they are trying to implicate her husband, when he was not even there during the incident and did not know anything about it until she was found passed out in the morning.241

Applicant also asserts on habeas that there were a number of others aware of Mariah's fall down the stairs. However, the record demonstrates that nearly all of them possessed only indirect knowledge—often with the information originating from Applicant—and often inconsistent with other parts of the record. For instance, Richard Alvarez, one of the younger children at the time, stated in a 2007 video-recorded interview from Maggie's House stated that Mariah died after “she stopped breathing.” When asked if Mariah had been recently hurt, Richard stated that Mariah had fallen down “two steps” and that he knew this because “my mom said so.”

Daniella, one of the older daughters, also provided a statement in on the day of Mariah's death.²⁴² On February 17, 2007, (the day of Mariah's death), Daniella provided the following in her statement:

Yesterday [Friday, February 16], I called my sister Alexandra.243 I wanted to talk to her and see how they were all doing. Alexandra told me that Mariah had fallen down some steps that are in front of the house. There are three steps. Alexandra said that Mariah had a black eye from the fall.244

We note here that Daniella's description of the steps is more consistent with the new apartment's steps on East Madison (a single-story residence) and not the stairwell Applicant claims Mariah fell down. Notably, Alexandra's statement, made on the same day, made no mention regarding Mariah's fall down any steps.²⁴⁵ For reference, in Applicant's original account of Mariah's fall, Alexandra was with Applicant inside the old apartment helping her pack the kitchen.²⁴⁶ Selena, another sibling to Mariah, told a CPS investigator on February 17, 2007, that “at the previous apartment Mariah fell one step but her [stepfather, Robert Alvarez] caught her.”²⁴⁷

To add to the inconsistencies, in 2018, Daniella provided the following statement in a sworn affidavit where she never mentions her phone conversation with Alexandra and learned of Mariah's fall directly from her mother:

On the day of Mariah's death [Saturday, February 17], I came to visit my mother and help her with the laundry. My mother and my brothers and sisters had just moved from one apartment to the other and there was a lot of cleaning to do. When I arrived I was told by my mother that she was worried about Mariah because she wasn't feeling well. She told me that she had fallen down the stairs and that after that she started sleeping more and not eating. I offered to take care of the kids while she would take her to the hospital. A few minutes later I heard Robert, my mother's common law husband, screaming my mom's name and we discovered that Mariah was unconscious. My mother started screaming and crying and Robert started to perform CPR.248

In 2018 (9 years after Mariah's death), Robert Alvarez (“Bobby”), another one of Mariah's siblings, now provides a sworn affidavit. Contradicting Applicant's account that nobody was around to see Mariah's fall, Bobby stated:

I am aware that my sister Mariah fell down the stairs a few days before she passed away. A saw her fall down, her foot went through one of the stairs and she fell down a few steps. To this day I am convinced that that incident along with the horseplay is what caused my sister's Mariah's death.249

Applicant also asserts that Rene Alvarez (9 years old at the time) was videotaped in an interview claiming to have seen Mariah's fall down “three steps” at the old apartment.²⁵⁰ However, we note that this is inconsistent with the initial claims by both Applicant and her husband, Robert. Per Applicant's interview, the only children present at the old apartment (while Robert, the husband, was making trips to the new apartment) were Alexandra, Bobby, Sara, Adriana, and Gabriel (and notably not Rene).²⁵¹ In his statement, Robert stated that Richard and Rene accompanied him during the trip he made on Thursday to the new apartment to verify the utilities had been turned on.²⁵² Per Robert's interview, Richard, Rene, and Selena were also traveling with Robert while he was making rounds to move belongings to the new apartment on Friday.²⁵³ Thus, it is inconsistent that Rene could have seen the fall if he was with Robert during any of Robert's trips to the new apartment (as Applicant also claims) on both Thursday and Friday.

In putting all the narratives of Mariah's alleged fall down the stairs together including Applicant's “new evidence”²⁵⁴ on habeas, one is left in much the same confused state as the detectives during Applicant's interview. Even though Applicant's “new evidence” is intended to bolster her claim that such an event happened and was the true cause of death, we are left with more questions than answers. It is uncertain as to how many stairs Mariah had allegedly fallen and when Mariah's fall allegedly happened. In fact, none of the accounts of Mariah's fall are completely consistent with any other. Additionally, it does not help that Applicant deliberately chose not to have any of the “new evidence” presented in live evidentiary hearings to help clarify how these accounts might fit together. And because of the numerous uncertainties and inconsistent circumstances surrounding the event, it would not be objectively unreasonable for a juror to question whether Mariah's fall even really happened.

 “When you hear hoofbeats, look for horses—not zebras”

Nevertheless, Applicant relies entirely on Mariah's fall down the stairs as indisputable fact and continues. To offer further explanation for the massive bruising on Mariah and without any live testimony, Applicant offers the claim that Mariah must have suffered from Disseminated Intravascular Coagulation.²⁵⁵ Disseminated Intravascular Coagulation (“DIC”) is a clotting disorder “characterized by excessive activation of coagulation, resulting in both hemorrhage (bleeding) and abnormal thrombosis (clotting).”²⁵⁶ Always a “secondary process,” DIC is triggered by another underlying disorder such as sepsis, trauma, or malignancy.²⁵⁷ In support, Applicant offers affidavits from two experts, Drs. Janice Ophoven and Michael Laposata.²⁵⁸

Dr. Michael Laposata, an accomplished expert in bleeding disorders, describes the general potential for DIC to cause bruising and other effects upon the body, but does not conclude that Mariah had DIC.²⁵⁹ His review of Mariah's medical records, notably, seems limited:

I was asked by counsel for Melissa Lucio [Applicant] about the significance of the presence of fibrin thrombi in blood vessels documented during Mariah Alvarez's autopsy. The presence of fibrin thrombi in body tissues is consistent with DIC.260

It is noteworthy here that being consistent with DIC does not equate to being exclusive to DIC. In light of fibrin's role in the bruise-healing process,  ²⁶¹ finding fibrin thrombi is expected at some point while an injury is healing.²⁶² And as Dr. Laposata concedes in his affidavit, “[i]t is not possible to tell the difference between a bruise from DIC and a bruise from abuse.”²⁶³

Dr. Janice Ophoven, basing her conclusion entirely on records, however, reaches farther in her evaluation to arrive at a more absolute result. Notably, she first asserts as indisputable fact that “[t]here was a history of a significant fall on a stairway” two days prior to Mariah's death.²⁶⁴ Dr. Ophoven also asserts that Dr. Farley ignored the signs of Mariah's fall down the stairs including “lethargy, somnolence, diminished appetite, teeth clenching, and vomiting.”²⁶⁵ Finally, although she initially asserts that the appropriate cause of death should be listed as “undetermined,” Dr. Ophoven concludes unequivocally that Mariah's autopsy “indicate[s] [Mariah] suffered from an acquired coagulopathy ․ called [DIC].”²⁶⁶

First, as discussed earlier, Mariah's alleged fall down the stairs is not an indisputable fact. Whether it even happened, where it happened if it did happen, and how severe the event was (as Dr. Ophoven seems to acknowledge) is unknown.²⁶⁷ Second, Dr. Farley did not ignore the signs of “lethargy, somnolence, diminished appetite, teeth clenching, and vomiting.” Rather, Dr. Farley testified in detail that these signs were symptoms of a traumatic brain injury (non-exclusive to either accidental or non-accidental brain trauma) that could lead to death.²⁶⁸

Finally, Dr. Ophoven's conclusion that Dr. Farley's autopsy results prove DIC (over Dr. Farley's apparent disagreement) with any degree of certainty is a logical stretch. One acknowledges that some of the evidence can be consistent with the rare disorder of DIC, but it is not exclusive to it. It is also consistent with physical abuse culminating in a fatal blunt force trauma to Mariah's head. Furthermore, Dr. Ophoven's conclusion ignores other evidence outside of just massive bruising that tends more strongly to abuse.²⁶⁹ It is highly doubtful that abuse can easily be ruled out in the presence of suspected bite marks, multiple areas of the scalp showing missing hair or pulled hair, and a spiral fracture to one of the arms.²⁷⁰

The most condemning factor, ultimately, is that Dr. Ophoven's conclusion is impossible to arrive at unequivocally according to Dr. Laposata. Per Dr. Laposata's research, it is not possible to definitively diagnose a patient with a clotting disorder via autopsy because diagnosing clotting disorders requires “circulating, unclotted plasma from a living patient.”²⁷¹

Thus, Applicant's experts violate the medical maxim “When you hear hoofbeats, look for horses—not zebras.”²⁷² Not everyone with a fever is infected with the Ebola virus. Nor does everyone with extensive bruising suffer from a clotting disorder. Per Applicant's own expert, Dr. Laposata, clotting disorders affect around 1% of the general population.²⁷³ Patients diagnosed with DIC would constitute only a fraction of that. The odds are extremely long that Mariah was suffering DIC contemporaneous to a fall down the stairs with pulled and missing hair on her scalp, suspected bitemarks, a healing spiral fracture on her arm, and additional bruising in uncommon areas of her body. When viewed in the context of numerous other inculpatory factors, Applicant does not make a clear and convincing case that a jury would believe Mariah clearly suffered from DIC.

 Estimated interval between the injuries to Mariah's brain and death

Applicant (via Dr. Ophoven) also attacks Dr. Farley's estimation that the injuries to Mariah's head were roughly within a 24-hour interval from her death based on the lack of hemosiderin-laden macrophages.²⁷⁴ Instead, Dr. Ophoven counters that “hemosiderin-laden macrophages can take up to several days to appear.”²⁷⁵

However, Dr. Farley's conclusion that the injuries to Mariah's brain was within 24 hours of death was only an estimate.²⁷⁶

On this child all we had was fresh hemorrhages, and the fibrin—the beginning of the fibrin which is within the 24 hour period. It would take about two to three days to start to get the spindle cells in, and some of the white cells into the area to begin to clear it out, and that was not seen. So that's as best as we can estimate it, it's within 24 hours.277

Dr. Farley testified to the fact that there was room for variability and error during trial.

I tried to take microscopic sections. Microscopic sections aren't always reliable, and there are articles that say that they aren't. But I went ahead and did it on this child, and did not see any hemosiderin or orange pigment in the macrophages --.278

According to Dr. Farley, her estimate was evidence based and the “best we can approximate, from the microscopes.” (34 RR 59).

Most importantly, Dr. Farley's estimate was not tied to a strict timeline theory of the offense. Rather, the crux of her testimony was that Applicant's defensive theory that Mariah fell down the stairs did not explain the blunt force trauma to the head and the extensive bruising all over her body (roughly contemporaneous to the head trauma) and pulled/missing hair on the scalp.

Prosecutor: Did you find anything on the child – any type of injuries that would be consistent with a fall, where you would expect to see – if something was there as a result of the fall?

Dr. Farley: It would depend on what fall your – where they're falling from, but not bruises all over the body. That's stretching it a lot, for one fall. Maybe if they fell off a house, fell off a significant height more than once. But these are – all over the body. This isn't a simple fall.

Prosecutor: The child's neck—it wasn't broken. Was it?

Dr. Farley: No.

Prosecutor: No? Is that something that you see sometimes on people when they fall, that they get broken necks?

Dr. Farley: Yes, you can. And on the elderly that fall down the steps sometimes, you might see a broken neck on these individuals. They, typically fall down the steps, it's not like the tumble, bumble, “Dick Van Dike” looking thing. Usually they fall, and then slide down the steps, and then hit their head on something at the bottom ․  279

***

Defense: And what would be the difference from the blunt force trauma that I would suffer – or that a child – excuse me – would suffer falling downstairs compared to the blunt force trauma head injury that you received – that you witnessed in this autopsy?

Dr. Farley: There are so many contusions and not just to the trunk, the torso, or the arms. But to the head itself. There are multiple contusions around that head which are seen in the photographs. That's not consistent with the child falling down the steps. Unless they're saying that they're doing a tumble, tumble, tumble, and even then – no. It isn't even consistent. There's a lot of contusions on that scalp. It's not consistent with that history.280

Dr. Farley also noted that many of the injuries were in portions of the body less prone to being injured during a fall. Some even resembled the shape of a hand and fingers grabbing Mariah. Thus, even if Dr. Farley's estimated timing of the injuries was incorrect, her error regarding that detail does not support in any way the defensive theory that Mariah's death could only be accidental and that she died only because she fell down the stairs.

 The Spiral Fracture on Mariah's Left Arm

Applicant next attacks Dr. Farley's identification of a 1-2 week-old spiral fracture on Mariah's left humerus (upper arm) in the early stages of healing.²⁸¹ Applicant also claims that Dr. Farley mischaracterized how spiral fractures are caused when she testified that spiral fractures can be caused by a “tugging on or twisting of Mariah's arm.”²⁸² In support, Applicant points to an affidavit from an expert orthopedic surgeon who opines, after reviewing only Mariahs x-rays and Dr. Farley's testimony, that the fracture may not have been a spiral fracture at all and may not have caused Mariah as much pain as Dr. Farley testified.²⁸³ Applicant's expert also asserts that even if it were a spiral fracture, spiral fractures are not necessarily specific to abuse.²⁸⁴

However, Dr. Farley's identification of the spiral fracture was not based only on a non-invasive x-ray. As noted in her autopsy report, Dr. Farley visually confirmed the spiral fracture by physically removing Mariah's left humerus and physically examining it.²⁸⁵ Moreover, Dr. Farley's description of spiral fractures and her explanation of how they are caused is not incongruent with Applicant's expert's. As Applicant's expert explained: “Spiral fractures are associated with twisting forces.”²⁸⁶ And while spiral fractures are not specific or exclusive to physical abuse (and can be caused accidentally), neither is Applicant's expert able to assert it is inconsistent with abuse. Likewise, although he disagrees to the level of pain that Mariah must have felt upon injury, Applicant's expert acknowledges that “[i]t would have been painful when it occurred ․”²⁸⁷ Finally, Applicant does not account for the environmental background in which Mariah's spiral fracture occurred. Whether the broken arm was truly accidental or the result of abuse is not dispositive to how Mariah died. As Dr. Farley assessed without dispute, the event that caused the broken arm happened one to two weeks prior to Mariah's death and not the same time as the head trauma.²⁸⁸ While it may provide a context of abuse where Mariah died, the State's theory was not predicated on it as a requisite fact.

 The Suspected Bite Marks on Mariah's Back

[Picture of suspected bite mark on Mariah's upper back cropped from State's Exh 23].

Applicant disputes Dr. Farley's identification and characterization of the above bruises as adult-sized bite marks and her description: “like dragging of the teeth across the back.”²⁸⁹ Applicant asserts that Dr. Farley's opinion about the bite marks was false and without any scientific basis.²⁹⁰

In support, Applicant submits a declaration from Dr. Adam Freeman, a forensic odontologist.²⁹¹ In his declaration, Dr. Freeman begins by asserting misleadingly that per a 2009 report from the National Academy of Sciences, “bitemark evidence is scientifically invalid, grossly subjective, and especially prone to the influence of cognitive bias.”²⁹² (The report actually only concerns the use of bitemark evidence in the context of matching a bitemark to a specific perpetrator— which was never done here.)²⁹³ Dr. Freeman continues and lists selected findings from a study he co-authored (which he does not provide the results nor the study in its entirety) to undermine the reliability of identifying arch-shaped patterned injuries as human bitemarks.²⁹⁴ Dr. Freeman provides several examples of circular patterned injuries mistaken for bitemarks to which Applicant claims is proof that “there is no scientific validity to identifying a patterned injury as human bitemark.”²⁹⁵ However, Dr. Freeman does not provide any alternative source (nor does Applicant)²⁹⁶ for the suspected bite marks on Mariah's back. In other words, Applicant fails to prove that the marks (which still do objectively resemble bite marks) are not, in fact, bite marks. Even if we take everything Applicant and Dr. Freeman assert as true, the suspected bite marks could still be human bite marks—especially in the context of other signs of physical abuse.

Nevertheless, Dr. Farley's opinion about the suspected bitemarks is not as dispositive nor material to the outcome as Applicant represents because the jury heard Applicant's admission that she bit Mariah.²⁹⁷ Even if we assume arguendo that Dr. Farley's bitemark opinion is scientifically unsupportable, the jury was able to see the suspected bitemarks, hear Applicant's admission to biting Mariah, and then decide the fact issue for themselves. Even if Dr. Farley's discussion of the suspected bite marks was completely subtracted from the equation, the jury could have still rationally decided that the suspected bite marks were genuine bite marks, especially in light of other strong signs suggestive of abuse. As the National Academy of Sciences unsurprisingly acknowledges, “[b]ite marks are seen most often in cases of homicide, sexual assault, and child abuse.”²⁹⁸ Accordingly, Applicant has failed to meet her burden even under a preponderance standard. Applicant first fails to show that the bitemark is scientifically not, in fact, a bitemark. And in light of her admissions of having bitten Mariah, she also fails to show how Dr. Farley's testimony regarding the bitemark was material.

 Texas Ranger Victor Escalon's “false demeanor reading”

As stated above, Texas Ranger Escalon was sent to aid in the Harlingen police investigation of Mariah's death. As a veteran investigator working for DPS, Ranger Escalon specializes in homicides, officer-involved-shootings, violent crimes, and public corruption.²⁹⁹ He arrived at the Harlingen police station after Applicant's interview began and participated in Applicant's interview along with Det. Cruz, Det. Martinez, and Det. Salinas.³⁰⁰ Ranger Escalon testified as to his observations of Applicant and his evolving suspicions during the interview.

On habeas, Applicant challenges Ranger Escalon's testimony regarding her demeanor as scientifically erroneous and ultimately false based on modern behavioral science and neuro-science.³⁰¹ Claiming that Ranger Escalon was inappropriately “emotion reading” during the interview, Applicant asserts that Ranger Escalon's “scientific” determination expressed with “complete certainty” that Applicant was guilty is unsupportable because “[t]here is no single template, fingerprint, or signature of physical signals that express guilt or innocence across all individuals in all situations, regardless of life history and culture․ There is no basis to infer lack of remorse, absence of grief or culpability from facial movements or body postures.”³⁰²

Applicant's challenge, however, has a number of holes in its logic. First, Ranger Escalon was not asked to testify toward Applicant's credibility in a scientific capacity—nor did he ever represent that his opinion was scientifically supported. He was asked about his opinion on Applicant's credibility based on his experience as a veteran law enforcement officer. In fact, that's what Ranger Escalon explicitly testified that his conclusion was based on—his own anecdotal experience and not any scientifically proven criteria:

Ranger Escalon: That's what I sensed. And I get that because of my experience in law enforcement, and my experience in interviewing people. Every time it's pretty much similar, in demeanor, in people and that's what I have experienced.303

As a result, the State cannot be guilty, therefore of any false scientific testimony.

Second, Ranger Escalon's testimony regarding Applicant's demeanor and credibility were not unique to Ranger Escalon. It was cumulative and consistent to nearly every single State witness that had contact with Applicant. Both of the testifying EMS paramedics (also offering testimony based on their experience) found Applicant's demeanor notably “odd.”³⁰⁴ One paramedic testified that Applicant's demeanor at the scene of Mariah's death “wasn't like a normal parent.”³⁰⁵ “And she didn't – at that point, she didn't appear upset at all.”³⁰⁶ His senior partner testified that Applicant “didn't act at all like what I would expect of a mother. Not like any of them that I had ever responded to in my entire career.”³⁰⁷ The senior paramedic also remarked “That [Applicant's demeanor] was so far out of the ordinary, that I put it into the report.”³⁰⁸

Most notable of the cumulative evidence, moreover, is the testimony of Det. Cruz who also participated in Applicant's interview. Det. Cruz testified that during the interview, Applicant's demeanor seemed “relieved—there was no emotion.”³⁰⁹ Det. Cruz also testified that although Applicant was only initially considered a witness, Det. Cruz began viewing her as a suspect because, in addition to her demeanor, “her story kept changing over – within the beginning of her statement.”³¹⁰

On habeas, it is notable that Applicant does not challenge any of Det. Cruz's testimony or her observations of Applicant's demeanor. Thus, even if Ranger Escalon's entire testimony was excluded, there still would have been State witness testimony opining about the character of Applicant's demeanor. Moreover, the jury was presented with video recordings of Applicant's entire interview complete with shifting explanations and visually reflecting her physical posture, facial expressions, and tone of voice. Because these video recordings were played for the jury during trial (and were available as evidence during deliberations), they were able to interpret Applicant's body language for themselves and decide as the fact-finder how much weight to attribute to Applicant's demeanor. They had no need to rely on Ranger Escalon's characterizations. Thus, even if one assumes for a moment that Ranger Escalon's testimony was erroneous, Applicant fails to show any harm. In summary, Applicant fails to show that Ranger Escalon's testimony was false scientific testimony, that his testimony was false, and that his testimony was material given the context of other evidence.

 Melissa Lucio's “vulnerability” to falsely confessing

Applicant claims on habeas that new scientific evidence shows that she was uniquely susceptible to giving a false confession.³¹¹ Applicant first points to a series of therapy session notes after being examined by a licensed therapist in jail.³¹² There, after initially denying any history of physical, emotional, or sexual abuse, she self-reported in a later session that she was abused sexually by her step-father at the age of seven and that, when she made outcry, her mother did not believe her.³¹³

From there, Applicant points to a psychological evaluation (presumably relying in part on Applicant's therapy session notes)³¹⁴ that diagnosed Applicant with posttraumatic stress disorder (PTSD) and major depressive disorder based on “her history of severe adverse childhood experiences.”³¹⁵ Applicant additionally asserts that, as a consequence of her mental defects, she was “uniquely vulnerable” to “suggestion, manipulation, [and] memory lapses” rendering any statements she made unreliable.³¹⁶ Thus, combined with the assertion that investigators effectuated a coercive interrogation via the use of strategically harsh wording, Applicant claims her “confession” could only be a false confession.³¹⁷ Because her confession is false, Applicant argues that it must be thrown out since all of the information gleamed from it is untrustworthy.

 Coercive Interrogation Law

It violates a defendant's rights under Due Process when the State during an interrogation coerces a defendant into a confession.³¹⁸ A confession must be voluntary in order to be admissible.³¹⁹ And the voluntariness of a confession “is to be measured according to the totality of the circumstances.”³²⁰ And while a mental deficiency or condition may become a “factor in the ‘voluntariness’ calculus,” it is not itself sufficient to justify the conclusion that a confession was not voluntary.³²¹ “Absent police conduct causally related to the confession, there is simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law.”³²² In other words, there must be some coercive interrogative act steering the defendant's mental deficiency to produce the involuntary confession.³²³ Accordingly, to show that a confession was involuntary, the defendant must show that:

(1) police engaged in activity that was objectively coercive;

(2) the statement was causally related to the coercive government misconduct; and

(3) the coercion overbore the defendant's will.324

“The ultimate question is whether appellant's [defendant's] will was overborne.”³²⁵

Applicant also claimed on direct appeal that the statements made during her custodial interrogation were involuntarily made.³²⁶ There, this Court concluded:

[A]fter having thoroughly reviewed appellant's recorded statement, we decide that it supports the trial court's finding that it was voluntary. Appellant's recorded statement fairly reflects that the interrogation techniques employed in this case are not the type of brutal “third-degree”327 techniques that would render a defendant's “statements to have been involuntary in traditional terms.” See Miranda, 384 U.S. at 455-57, 86 S.Ct. 1602; State v. Terrazas, 4 S.W.3d 720, 723-24 (Tex. Crim. App. 1999) (explaining that the voluntariness test is whether “the confession is the product of an essentially free and unconstrained choice by its maker” and whether the confession is true or false is irrelevant to a voluntariness determination because “it is the methods used to extract an involuntary confession that offends constitutional principles” (internal quotes omitted)) and at 726-27 (discussing examples of interrogation methods that offend constitutional principles).328

The U.S. Supreme Court has since declined further review of Applicant's claims of involuntariness twice.³²⁹

After reviewing both the video recordings and the transcripts of Applicant's challenged interrogation, I reach the same conclusion as this Court reached before. Per the requirements of Miranda and Texas statute, Applicant was properly informed of her rights at the beginning of the interview including her rights to terminate the interview at any time and her right to have an attorney present if she wished.³³⁰ Though completely aware of her constitutional rights, she did not assert them. And just as importantly, Applicant never appears to have lost her ability to exercise her free will.

During the course of the interview, Applicant often paused after being asked a question and appeared to consider her response before answering. At the very beginning, Applicant was given the chance to narrate her logically and temporally inconsistent version of events leading up to Mariah's death. And in spite of her assertions of a non-resilient suggestible psychological state, Applicant made numerous attempts to deny or avoid admissions of guilt or knowledge on even issues tangential to Mariah's death—including the presence and use of cocaine in the residence. Furthermore, she never admitted to causing Mariah's death. Though not always advisable, her actions and responses appear to be freely made and rationally based.³³¹

As recognized by both the Supreme Court's and our case law, custodial interrogations and police interviews are inherently stressful.³³² And in cases involving suspected homicide or other serious felonious conduct, the stakes will be inherently high. In this regard, Applicant's interview was no different. Nevertheless, after reviewing the video recordings and the transcript, there were no observable coercive acts on the part of the State. One does not find any overt threats or physical violence. Moreover, as this Court found before, there were no “brutal ‘third-degree’ techniques that would render a defendant's ‘statements to have been involuntary in traditional terms.’ ”³³³ While some of the questions may not have been ideal, without something substantially more, the Court should not second-guess police investigators reacting to evolving situations because an uninvolved party, contemplating in hindsight, merely finds the wording less than perfect.³³⁴ Here, Ranger Escalon was investigating a deceased two-year-old baby with blunt force head trauma and massive bruising across her entire body.

Applicant also implicitly argues that her confession should be suppressed because it is a false confession, and thereby, intrinsically unreliable. As the Court has said before, “whether the confession is true or false is irrelevant to a voluntariness determination because ‘it is the methods used to extract an involuntary confession that offends constitutional principles.’ ”³³⁵ Thus, because there is no objectively coercive act by the State, no causal link, and no loss of Applicant's ability to exercise her free will, Applicant's inculpatory statements should not be suppressed.³³⁶

Nevertheless, entertaining Applicant's assertions for the sake of argument reveals that her “false” confession is not as unreliable as she asserts. The most incriminating details produced from her confession are largely corroborated by wholly independent sources. Moreover, many of these inculpatory points remained consistent throughout Applicant's interrogation—both before Ranger Escalon's allegedly coercive tactics and during.

[Editor's Note: The preceding image contains the reference for footnotes ³³⁷ ,  ³³⁸ ].

The above cumulative evidence contradicts Applicant's scientific assertion that she was a victim of high “suggestibility” due to past psychological trauma. It is noteworthy, furthermore, that Applicant's insistence over her sister's repeated and emphatic denials that Applicant spanked Mariah point to more mental resilience than Applicant gives herself credit for. In other words, these are not the marks of a person whose free will was somehow overborne. The corroborating nature of wholly independent evidence does not support that Applicant fabricated a story just because that's what she thought investigators wanted to hear. When multiple independent sources of information are consistent with each other, the points of commonality tend to have more veracity than not. Thus, even if one assumed for the sake of argument that coercive tactics were in play (which they were not), Applicant fails (again) to demonstrate that the State caused her to bear false witness against herself. The independent corroborating evidence, moreover, undermines the foundation of her “new science” claim that she was uniquely vulnerable to false confession.

Claim 4

 Brady Obligations of the State, Materiality, and Prejudice

Under Brady v. Maryland, the State is prohibited from suppressing “evidence favorable to an accused upon request ․ where the evidence is material either to guilt or to punishment.”³³⁹ When the State suppresses such evidence, it violates our conception of Due Process “irrespective of the good faith or bad faith of the prosecution.”³⁴⁰ The purposes of these obligations “is not to displace the adversary system as the primary means by which truth is uncovered, but to ensure that a miscarriage of justice does not occur.”³⁴¹

Nevertheless, “the Constitution is not violated every time the government fails or chooses not to disclose evidence that might prove helpful to the defense.”³⁴² “[A] rule that the prosecutor commits error by any failure to disclose evidence favorable to the accused, no matter how insignificant, would impose an impossible burden on the prosecutor and would undermine the interest in the finality of judgments.”³⁴³ Simply “showing that the prosecution knew of an item of favorable evidence unknown to the defense does not amount to a Brady violation, without more.³⁴⁴ In other words, “prejudice must have ensued.”³⁴⁵

Therefore, the “touchstone of materiality” for undisclosed evidence in a Brady claim, “is a ‘reasonable probability’ of a different result, and the adjective is important.”³⁴⁶

The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A “reasonable probability” of a different result is accordingly shown when the government's evidentiary suppression “undermines confidence in the outcome of the trial.”347

An analysis under Brady does not test for sufficiency of the evidence.³⁴⁸ Still, the defendant must show “that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.”³⁴⁹ As the party seeking relief, Applicant bears the burden of proof and “assumes the risk of nonpersuasion.”³⁵⁰

 Applicant's Claims of Undisclosed Brady Evidence

On habeas, Applicant claims a number of items of Brady evidence that were not disclosed to her defense team leading up to trial.³⁵¹ These include:

• Eyewitness testimony that Applicant did not abuse Mariah or any other children; and

• Awareness of other family members that Mariah had fallen down the stairs.

• Mariah's siblings saw Mariah's health decline over the last two days since her alleged fall down the stairway.

• Mariah's dehydrated state was not Applicant's fault because she tried to get Mariah to drink water.

• Mariah had not shown signs of injury to her arm in the weeks prior to her death.

• Applicant had not been unemotional about Mariah's death.

• A witness who claimed she saw bruises on Mariah much earlier would have been impeached by her husband who did not see them, and by a CPS investigation that failed to corroborate her account.

• A prosecutor debriefed therapist Beto Juarez about his interviews with Applicant.352

During the first habeas petition, the habeas judge (also the original trial judge) submitted factual and legal findings that Applicant's claims under Brady did not warrant relief in light of the strength of the evidentiary record.³⁵³ However, on subsequent habeas, the same habeas court submitted findings of fact and conclusions of law with a complete 180-degree change in position. As a result, this Court was left with significant inexplicable dissonances arising from essentially the same evidentiary record. With these circumstances in mind, I address and evaluate each claim as the current record permits.

• Eyewitness testimony that Applicant did not abuse Mariah or any other children.

Applicant asserts that the State withheld a CPS Investigation Report produced by CPS Investigator Florence “Lucy” Arreola that was favorable to the defense.³⁵⁴ Although it was also triggered by Mariah's death, the report was created as part of a CPS investigation separate from the criminal investigation.³⁵⁵ The CPS investigation began on February 17, 2007, (the day of Mariah's death) and concluded on March 9, 2007.³⁵⁶

In the report, Applicant specifically points to notes regarding Investigator Arreola's February 17 interviews of Selena and Alexandra.³⁵⁷ Per the interview notes, Selena (Applicant's daughter) stated that Applicant, though frustrated, would not hit any of the children.³⁵⁸ Investigator Arreola's notes also revealed the following from Alexandra's interview:

Alexandra did admit to seeing her [mother] lose her temper with the children but that she would not hit them. She stated that her mother [redacted in original] would spank the children on their butt with their hand.359

It is unclear how this information of Applicant's refusal to spank her children was “suppressed” by the State. Applicant lived in a small apartment with her husband and numerous children—several of them in their teenage years. Assuming this character evidence to be true, any reasonably diligent inquiry or interview of close family members could have revealed it for Applicant's defense team. The State did not “hide the ball” and suppress the information such that Applicant could not discover it and present her defense.

The record does not show that Applicant's trial counsel was ever called by the Applicant or the State to testify or submit a sworn affidavit of his awareness/unawareness of this and thought processes leading up to and during trial. This deficiency leaves a significant evidentiary chasm in a claim where Applicant bears the burden of persuasion.

Moreover, the absence of this CPS Investigation report—particularly the portions containing Selena and Alexandra's statements—does not undermine confidence in the verdict of this case. They were cumulative to other evidence and testimony—which in some cases was far stronger.³⁶⁰ For instance, Applicant's sister, Sonia, vehemently testified at trial during the defense's case-in-chief that Applicant would never hit her children.³⁶¹

Sonia: She never disciplined her children. I can recall numerous occasions, as my daughter was growing up with her older children, that her children were very aggressive towards my daughter. And Melissa, she never disciplined her kids․ I – I would get upset because she wouldn't discipline her kids.

***

But she never would. She never did. And I would spank my daughter. And she would never. She never disciplined her kids. Just say: Behave, sit down, I'm going to spank. She never did. They were just words. And that was upsetting because my daughter was getting hit.362

Sonia went further in her testimony to portray Applicant as a completely non-violent and non-aggressive person:

Defense: And did you and Melissa ever fight as kids growing up?

Sonia: Yes, we did. But, once again, I – I would push Melissa. I would shove Melissa. I would bite Melissa. I would pull her hair. She never shoved back. She never pulled my hair. My youngest sister would defend her. I would grab whatever, a shoe, and I'd smack her on the head. And she never hit me․363

Despite this much stronger evidence of non-violence, the jury inevitably did not find it credible. The record shows that there was evidence suggestive of the opposite. For instance, Sonia contradicted her own assertions by recounting the post-arrest phone call Applicant made to Sonia.³⁶⁴ As noted prior, Sonia recounted how Applicant repeatedly disputed Sonia's assertion that Applicant would never physically discipline her children.³⁶⁵ The jury also heard Officer Villareal's testimony that he heard Applicant (from his point of view) essentially admitting Applicant's responsibility for Mariah's injuries and death.³⁶⁶

The jury also watched the recording of her interview where she admitted to causing a majority of the bruising that covered “over 90% of [Mariah's] body.”³⁶⁷ Applicant admitted to pinching Mariah's groin and that her “spanks” to Mariah's body were “hard.”³⁶⁸ During the interview, she also admitted to leaving bite marks on Mariah's back for no articulable reason.³⁶⁹ When pressed, she later admitted that she bit Mariah “mostly out of frustration.”³⁷⁰

The CPS investigation report in its entirety does not help Applicant's case any better. It concluded that Mariah died of “homicidal injuries” and that Mariah's parents (including Applicant) “provided inadequate explanation for the injuries.”³⁷¹ The report further noted that Applicant maintained an “extensive CPS case history” with numerous CPS investigations.³⁷² It described her as abusing drugs (including an admission of recent cocaine use) and alcohol out of a “compulsive use or need.”³⁷³ In terms of the “Risk Assessment” section, the investigation report listed the following:

[Editor's Note: The preceding image contains the reference for footnote ³⁷⁴ ].

The Risk Assessment portion of the report also indicated that each of these concerns were “Not addressed.”³⁷⁵

Thus, on this first item of her Brady violation claims, Applicant fails her burden of persuasion. There's no demonstration that the information was “suppressed” by the State. Certain portions were duplicative of other items of evidence such as the Maggie's House interviews which were disclosed to the defense.³⁷⁶ Moreover, Applicant does not show that any failure to disclose the Arreola's CPS investigation report (complete with witness statements asserting that Applicant never physically hit her children) prejudiced Applicant's case as envisioned under Brady. The evidence does not put the “whole case in such a different light as to undermine confidence in the verdict.”³⁷⁷

• Awareness of other family members that Mariah had fallen down the stairs

Applicant asserts that previously undisclosed or suppressed evidence shows that other family members were aware of Mariah's fall down the stairs. Applicant correspondingly argues that the State's failure to disclose this evidence prejudiced her case. However, her claim again fails to show suppression by the State and how any prosecutorial failure on this point undermines confidence in her conviction.

First, as demonstrated in the above prior analysis, there are numerous inconsistencies (even with the previously undisclosed evidence) in the alleged fall down the stairs.³⁷⁸ Not only has the story evolved over time, but there are multiple narratives containing proffered facts that cannot coexist with the details from other narratives.³⁷⁹ And a majority of the narratives (if not all) are second-hand accounts not based on direct knowledge.³⁸⁰ As a result, one cannot be certain as to the date of the fall, the time of day, the number of steps Mariah fell, whether there were witnesses with lines of sight when it happened, or even who was in the vicinity of the apartment at the time of the fall. As Applicant voluntarily waived all live evidentiary hearings that might have helped harmonize these competing narratives, one is left in the same state that the initial trial jury faced when provided the inconsistencies from the original trial evidence: skeptical as to whether the fall even happened.

Second, there's no showing that the information was suppressed by the State. Any reasonable inquiry, assuming the fall really happened, could have revealed who saw it or was somehow aware of it. If Applicant's statements are to be believed, nobody was physically present to have witnessed the fall. Applicant, and only Applicant, discovered injured-Mariah crying right after it happened. Thus, Applicant would have been aware of who she told, at least initially, about the incident in order to demonstrate a temporally proximate awareness of the alleged fall by others.

Third, outside of physical abuse, Applicant was unable to adequately explain how Mariah sustained massive bruising covering 90% of her body contemporaneous to allegedly falling from just a few steps. None of the law enforcement officers involved believed Mariah's injuries to be adequately explained by Applicant's accounting of Mariah's fall.³⁸¹ Neither did CPS Investigator Arreola's report.³⁸² Dr. Vargas, a 30-year veteran ER physician, testified that the amount of bruising was not consistent with a single time falling down the stairs.³⁸³ Moreover, in his 30-year experience, Dr. Vargas testified that “I have never seen a child – and I've seen many, many children and adults also – but this is the absolute worst that I've ever seen.”³⁸⁴

Dr. Farley, the pathologist, testified:

Q: Did you find anything on the child – any type of injuries that would be consistent with a fall, where you would expect to see – if something was there as a result of the fall?

Dr. Farley: It would depend on what fall your – where they're falling from, but not bruises all over the body. That's stretching it a lot, for one fall. Maybe if they fell off a house, fell off a significant height more than once. But these are – all over the body. This isn't a simple fall.385

On cross-examination, Dr. Farley further testified:

Q: And what would be the difference from the blunt force trauma that I would suffer – or that a child – excuse me – would suffer falling downstairs compared to the blunt force trauma head injury that you received – that you witness in this autopsy?

Dr. Farley: There are so many contusions and not just to the trunk, the torso, or the arms. But to the head itself. There are multiple contusions around that head which are seen in the photographs. That's not consistent with the child falling down the steps. Unless they're saying that they're doing a tumble, tumble, tumble, and even then – no. It isn't even consistent. There's a lot of contusions on that scalp. It's not consistent with that history.386

Thus, on this item of her Brady violation claims, one cannot conclude that the awareness of Mariah's alleged fall by other family members (even in the context of all the other evidence available on habeas) materially casts Applicant's conviction in doubt.

• Mariah's siblings saw Mariah's health decline over the last two days since her alleged fall down the stairway.

Applicant next asserts that Alexandra and Daniella's statements made to police on the day of Mariah's death, February 17, 2007, were suppressed in violation of Brady and resulted in prejudice.³⁸⁷ It's doubtful that the evidence gained from these statements were very material to Applicant's guilt. In light of the evidentiary record and its inadequate ability to support Applicant's defensive theory, it's hard to see how the failure to disclose these statements caused any prejudice under Brady.

One initially notes that Applicant's claim here is misleading. The detail of events offered in Alexandra's statement only stretch back to Friday, February 16, 2007—not Thursday, as the phrase “over the last two days” as Applicant's brief on habeas would suggest.³⁸⁸ Similarly, Daniella's sworn statement reveals that she only saw Mariah and observed her condition on the day of her death.³⁸⁹ Although she had no direct knowledge other than seeing Mariah breathing while sleeping on the bed, Daniella also stated that Applicant told her about Mariah's refusal to eat or drink, her breathing difficulty, and Mariah sleeping all day.³⁹⁰ Alexandra's statement, though assertive of more direct knowledge temporally, asserted the same things. Alexandra, moreover, tied Mariah's declining health condition to an event where Mariah ate some tamales (on Friday, February 16, 2007) and then subsequently vomited.³⁹¹

With regard to Mariah's declining health conditions, I remain doubtful as to the materiality of this evidence. It is undisputed in this case (both at trial and on habeas) that Mariah's cause of death was blunt force trauma to the head.³⁹² As testified to by the State's pathologist, the symptoms for severe blunt force head trauma include:

- inability to stay awake

- occasional locking of the jaw (due to seizures as the muscles repeatedly tighten and then relax)

- vomiting (due to swelling of the brain)

- lethargy or coma

- abnormal respiration (affected by brain swelling)393

Thus, the observation of these symptoms is consistent with both the State's theory of physical abuse as well as Applicant's defense that Mariah's death was accidental.

Nevertheless, to the extent that these statements could have been utilized in support of Applicant's defense, there was no prejudice. The symptoms of Mariah's declining health are cumulative to Applicant's admissions made during her police interview which was admitted as evidence during trial.³⁹⁴ Furthermore and as noted earlier, Alexandra's statement was temporally inconsistent with Applicant's claim that the series of events began on Thursday (and not Friday) while Daniella's statement on these details remains purely duplicative.³⁹⁵ In summary, on review under Brady, Alexandra and Daniella's undisclosed statements do not cast doubt to a point substantial enough so as to undermine confidence in Applicant's conviction.

• Mariah's dehydrated state was not Applicant's fault because she tried to get Mariah to drink water.

As demonstrated above, Mariah's dehydrated state was among a number of symptoms associated with severe blunt force head trauma. As a symptom, it is not exclusive to either accidental or non-accidental head injury. Hence, this fact was not material to her guilt at trial and thus could not have prejudiced her defense under Brady.

• Mariah had not shown signs of injury to her arm in the weeks prior to her death.

Applicant then points to statements by her daughter, Daniella, stating that Mariah “looked really healthy and active” two weeks before she died.³⁹⁶ Applicant claims this conflicts with Dr. Farley's statements regarding Mariah's broken arm.

As discussed in an earlier section, and though there is a dispute on the level of pain, even Applicant's own expert acknowledges that the spiral fracture on Mariah's arm “would have been painful when it occurred.”³⁹⁷ Even if Applicant's claim that Mariah had not shown signs of injury to her arm in the weeks prior were true, it is not dispositive to how Mariah died. Moreover, there is no dispute that Mariah's arm was indeed broken some weeks prior to her death. And while the existence of an arm fracture provides some contextual support for physical abuse, which in turn, supports the State's theory of non-accidental death, it was only one of many other pieces of evidence that did so. As stated before, Mariah injuries included in addition to her broken arm, multiple bite marks, pulled and missing hair on her scalp, trauma to multiple areas of her head, and widespread bruises even in areas less likely to be injured. Much of it were in areas of the body that would be covered by clothing. Thus, while Applicant's claims regarding Mariah's arm (even if it had been found credible) might cast some small doubt, it is not substantial enough to undermine confidence in the outcome.

• Applicant had not been unemotional about Mariah's death.

The evidence presented by the State at trial never claimed that Applicant was completely unemotional about Mariah's death. The senior paramedic testified that Applicant appeared “somewhat distressed, but distant.”³⁹⁸ Det. Villareal testified to the following:

Q: Did you ever see her cry or anything of that nature?

Det. Villareal: I did. When we were outside, it started getting dark. And like I said, there were police cars and other vehicles. And from the distance you could hear relatives showing up in their cars. You could hear the door slamming -- crying. You could hear them running. And I noticed that Melissa would get up from the steps, and she would get consoled by these relatives that showed up and this is where she would start crying.

Q: Okay.

Det. Villareal: And then after a short conversation, then, she would go back -- she'd go back to the steps, and she'd be smoking sometimes, and she would be crying and she would be conversing with any other person that was nearby. And then, again, I would hear another relative show up. And then I see her do the same thing. Again, she would go off and console, and she would cry. And after they stopped hugging, she would go back to sit down, and she wouldn't be crying anymore.399

Nevertheless, to the extent that witness testimony could show Applicant was emotionally affected (at least more than the State's testimony demonstrated), Applicant fails to show how this was suppressed by the State. As shown above, any number of relatives that were present and had arrived could have testified towards her emotional reaction. Applicant does not show how these relatives (including her daughters) were somehow made unavailable to Applicant's defense team because of any State action. Moreover, with regard to Applicant's emotional state during her interview with the police, the video recordings were admitted into evidence and were available to the jury to evaluate. Thus, there is no showing of “suppression” by the State or any resulting prejudice to Applicant's case as a result.

• A witness who claimed she saw bruises on Mariah much earlier would have been impeached by the witness's husband who did not see them, and by a CPS investigation that failed to corroborate her account.

Applicant next points to the unsworn “Declaration of Jose Javier Guerrero” for statements that could contradict statements made by June Thompson.⁴⁰⁰ For reference, Thompson was in cohabitating romantic relationship with Guerrero at the time of Mariah's death and lived in the apartment unit immediately next door to Applicant's old apartment.⁴⁰¹ In 2007, only weeks after Mariah's death, Thompson signed a sworn affidavit attesting, as relevant, to the following:

Melissa and Robert's home was never quiet, their home was extremely rowdy. I could hear children running around, screaming from Melissa and Robert, and I heard a baby getting spanked numerous times with a belt. I believe the mother was spanking a baby girl because Robert was at work and I could hear a little girl screaming. This was during the day sometime after 11:00 a.m. on a weekday shortly before the child passed away.

***

I heard the children get spanked three or four times with a belt (a young girl) and it sounded like she was getting brutally beaten by mother. This was during the day when the older kids were in school. I got home at 11:30 a.m. or 12:00 p.m. on a weekday and the screen door was closed and wooden door was open to Melissa's apartment. This is when I heard a young girl screaming and being spanked with something like a belt.

***

I took care of the younger girl that died maybe one or two weeks after they moved in. Melissa took her to my apartment with an adult pamper and a bag of chips, no clothing․ When I changed the little girl she had a few bruises in her thighs, and below her belly button on her sides. The little girl held me tight when she was with me and she did not let me go. She did not let me put her down and she stayed with me the whole time. I have seen scared children and this little girl just looked so scared.

I really thought this was the child that was being abused. I did not report this because I was scared. My husband [Guerrero] told me not to get involved in anybody's business because they might want to fight us․ My husband said he did not want any problems and he did not want Melissa to be fighting with me.

Melissa was always yelling constantly saying things to her kids like shut the f_ck up, you little sh_t, I'm gonna to kick your ass, I'm gonna to hit you, I'm gonna beat you, and we thought she would fight with me.402

Offered as a State witness, Thompson testified consistent with the substance of her affidavit during trial.⁴⁰³ However, her testimony was only introduced during the punishment phase.

Roughly fifteen years later, in 2022, Guerrero signed an unsworn declaration that stated, as relevant, the following:

- When June and I babysat Mariah, I never saw any bruises on Mariah. I didn't see any marks on her. I did not have any concerns that she was being abused or beaten. I heard a lot of shouting back and forth, like screaming at the kids, but I never heard anyone sound like they were being hurt.

- It would not have been possible to hear whether a child was being hit with a belt next door, like Mariah, since there were so many children in the home. Especially her since she was a baby.

- The police were all over the apartments talking to neighbors to see what we knew. I spoke with the police and they asked me questions. I told them the same thing I am saying now that I did not ever see any evidence that Mariah was being physically abused. I did not see it, and I did not hear it.404

First, one observes that the fact that police did not produce any report of their neighborhood canvas interview of Guerrero is not evidence that they suppressed it. Guerrero's unsworn declaration merely asserts that he told the police during their neighborhood canvas that he did not see nor hear anything (other than the screaming) that would make him believe there was ongoing abuse next door. By itself, that does not affirmatively show that there was no abuse ongoing next door such that police might find it notable enough to produce a record.

Moreover, Guerrero's claims do not necessarily contradict Thompson's testimony and statements. When they were babysitting her, Guerrero asserts he never saw any bruises on Mariah. But Thompson claims she saw the bruises on Mariah only when she changed her—an event that Guerrero might not have participated in. Similarly, Guerrero's assertion that it “would not have been possible to hear whether a child was being hit with a belt next door” does not account for the fact that Thompson claimed that she heard it when Applicant's door was open (with only the screen door closed).⁴⁰⁵ Furthermore, it is not even clear if Guerrero was present with Thompson during this time to be able to refute her.

Finally, one notes again that Guerrero's statements would have only been useful to the defense during the punishment phase as a means to impeach Thompson. By this point, Applicant was already found guilty of brutally inflicting fatal blunt force head trauma against her two-year-old child. It is not likely that Guerrero's statements—even when viewed in the most positive light and in the context of all the other evidence—would have significantly tipped the scales in Applicant's favor.

• A prosecutor debriefed therapist Beto Juarez about his interviews with Applicant.

In her last claim, Applicant points to the unsworn Declaration of Jesus Roberto “Beto” Juarez, a licensed therapist assigned by CPS to provide counseling services to Applicant while she was in jail awaiting trial.⁴⁰⁶ Beto asserted that Applicant initially denied a history or sexual abuse (but did admit to a history of some physical abuse) during their first session. Per Beto, the State relied on Applicant's initial denials in formulating the strategy for their case.⁴⁰⁷ However, in later sessions, Applicant revealed that she had been sexually abused by her stepfather at a very young age. Beto asserts that he was never contacted or subpoenaed to testify in Applicant's case.⁴⁰⁸

It is unclear here how this violates Brady. Applicant was fully aware of her own counseling sessions with Beto and the details of the matters they discussed. It is unclear here how the State “suppressed” or somehow failed to disclose the existence of Beto as a potential witness.

• The Brady claims from a more global perspective

Outside the more tangential claims, the core majority of Applicant's Brady claims attack the portrayal of Applicant before the jury as a physically abusive mother (and thus, could not have been responsible for the blunt force head trauma). Thus, it seems the habeas court focused on isolated portions of Investigator Arreola's CPS investigation report as well as the statements of Daniella and Alexandra to justify recommending habeas relief.⁴⁰⁹ In those isolated portions, the habeas court below points to assertions that Applicant was never physically abusive:

[T]he suppressed Investigative Report revealed that all of Applicant's children told [Investigator] Arreola that their mother was not abusive to them or Mariah. Specifically, Bobby told Investigator Arreola that “he has never seen anyone hit Mariah.” The suppressed Investigative Report also reveals that Alexandra told Investigator Arreola that she “didn't believe that her mother would hit Mariah” and that whenever she disciplined the other children, she only “spanked” them “on the butt with her hand. Two other children, Rene (age 9) and Selina (age 15), likewise told investigator Arreola that they had never seen their mother hit Mariah or her other children.410

However, these exculpatory claims are only material to the outcome when viewed in a vacuum. Finding credibility in these claims would have required the jury to be willfully blind to Applicant's video-recorded admissions of inflicting the majority of Mariah's injuries and other independent corroborating evidence.⁴¹¹

Nevertheless, while still relevant, whether Applicant was physically abusive was not the core question faced by the jury at trial. In fact, the record suggests it was strategically conceded to at the beginning of trial.

[DEFENSE]: Now in the opening remarks that we made in the beginning of the trial after you were all seated here, I told you my client is not up for “Mother Of The Year.” I told you that my client is guilty of injury to a child. She is and she has admitted that. The question here before you is whether or not on February 17, 2007, Melissa Lucio intentionally and knowingly killed Mariah Alvarez. That's the issue. That's the issue. Not whether she beat her. Not whether she broke her arm. Not whether she's a lousy mother or didn't provide for her children.

***

This whole case revolves around this video. This video is real important. If you have—if you cannot remember it all, play it again. It's a long, long video. And I'm sorry for that. But this is the key to everything in this case.

***

She confessed to what? She confessed to bruising that child from head to foot. She confessed to neglect. She didn't confess to murder.

***

But I want to go back to the video because the video says a lot․ Melissa Lucio said things.

***

She is telling us much: I beat this child. I neglected this child. I hurt my child, but I didn't kill her. I didn't hit her on the head. So how did she get the brain hemorrhage? Fell down the stairs․ Melissa Lucio says she fell down the stairs.412

Thus, the jury was essentially faced with the question of whether they believed that: while Applicant admitted physically abused two-year-old Mariah all over her body sufficient to cause massive bruising (including bruised internal organs), a broken arm, missing patches of hair, bruises on her ears from pinching, pinch bruises near her genitals, and bite marks; she never hit her on the head.⁴¹³ The only alternative offered to the jury was Applicant's dubious narrative of an alleged fall down the stairs provided with ever-shifting details of who, what, when, and where. Based on their verdict, the jury did not find Applicant's story credible.

The judge who presided over the trial and both substantive habeas claims seems to have acknowledged as much in his initial Findings of Fact and Conclusions of Law.

Defense counsel's decision not to attempt to present this evidence was trial strategy because Alexandra and her sister, Celina [Selena] were giving conflicting stories that were not particularly credible. Furthermore, defense counsel may have justifiably feared that putting those children on the stand would backfire, as they might deny having caused any abuse and point to Applicant as the perpetrator. Again, Applicant admitted during her videotaped statement that she caused all, except perhaps two, of the numerous wounds found on the victim's body. Attempting to bring in children to testify that they had caused the bruising would have simply confused the issues and would not have furthered trial counsel's strategy to argue to the jury that Applicant truthfully told police she had caused these wounds but not the fatal blunt force trauma that killed the victim.

***

Defense counsel elicited testimony from Applicant's sister [Sonya] and CPS worker Joanne Estrada, both of whom testified that they had no knowledge of Applicant's ever being physically abusive to any of her children. This testimony was sufficient in furthering Applicant's allegation that she did not physically discipline her children. This testimony and any other testimony purporting to show that Applicant was not physically abusive toward her children would be of limited, if any, value given that Applicant admitted to police that she had caused the extensive injuries found on the victim. No deficiency on the part of defense counsel has been shown.

Defense counsel was not deficient for failing to call two of Applicant's sons, Richard and Rene, to testify. During their forensic interviews, they both stated they did not know how the victim died, and that they had seen no visible marks or bruises on the victim. It is undisputed that numerous bruises, abrasions and contusions of varying ages were found on the victim, and that Applicant admitted to police that she had caused nearly all of them. Any attempt to introduce evidence suggesting that no abuse occurred at all would have been of dubious probative value, confuse the issues, and likely cause the defense to lose credibility with the jury, especially since these two witnesses would have been young children.

Applicant's son Rene did advise the forensic interviewer that he saw the victim fall down some steps, but the fall he described was not at all consistent with the blunt-force trauma that actually caused the victim's death. Hence, defense counsel was not deficient for opting not to present testimony that would have been of virtually no evidentiary value.

Applicant's sons Richard and Rene also made statements to the forensic interviewer that would have been directly detrimental to Applicant's defense. They both stated that violence was a regular occurrence in Applicant's household, and that Applicant was an aggressor. Had the boys testified to this at trial, it would have impeached Applicant's own expert testimony that she had no history of violence. Defense counsel's trial strategy was to keep the jury from hearing about Applicant's violent tendencies.

***

Defense counsel was not deficient for failing to argue that Applicant was able to explain innocuous sources for many of the victim's injuries. During her recorded statement to police, she did first attribute the victim's bruises to mosquito bites, rough play between the children and self-injury. However, later in the interview she admitted to causing all the injuries. Once the jury heard that confession, any prior explanations were moot, and defense counsel did not err in failing to urge them at trial.414

The judge's initial understanding as provided above is strongly supported by the record—as also demonstrated throughout this opinion.⁴¹⁵ Under the above understanding of the evidentiary context, therefore, Applicant's claims, even when evaluated individually and also for their cumulative effect, do not create a scenario with a “reasonable probability of a different result.”⁴¹⁶

Thus, while I am sensitive to the extremely high stakes of this case and even sympathetic to Applicant's plight, I must acknowledge that Applicant has simply not met her burden of showing—and the record does not support—that “the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.”⁴¹⁷

Conclusion

As a person found guilty by a jury beyond a reasonable doubt, it is Applicant's burden to overcome the presumption of a valid jury conviction with new evidence clearly and convincingly proving her actual innocence. None of the new evidence Applicant presents, when viewed in the context of the existing evidence, clearly and convincingly demonstrates that no rational juror would have found her guilty beyond a reasonable doubt.⁴¹⁸ Even when viewed for any cumulative effect, the evidence Applicant presents undermines and contradicts other evidence that might otherwise offer a modicum of support for her case.

Additionally, much of the evidence that she claims is false is not provably false. And to the extent that she is able to inject even a small measure of quibble to its accuracy, it is nowhere near enough to have created a false impression to a jury. Furthermore, in light of other very strong cumulative evidence, Applicant fails to show how it was material.

It is stressed once again that even though she was given an eleventh-hour reprieve from her death sentence, Applicant waived all live evidentiary hearings despite the opportunity to conduct further fact-finding to advance her cause. And despite all the inconsistencies and contradictions in her assertions on habeas, one can only presume that this decision was voluntarily and knowingly made with the understanding that her evidentiary burden is herculean.⁴¹⁹ It is also stressed here that applicants for the writ of habeas corpus are typically allowed only a single bite of the apple except in the most exceptional of circumstances.⁴²⁰ Thus, it was incumbent upon Applicant—who has received multiple bites at the same apple—to present her best case with the best and most complete evidence they could produce in order to potentially obtain relief.⁴²¹ The party requesting judicial intervention and bearing the burden of proof bears the risk of non-persuasion.⁴²² And here, Applicant has failed to meet her burden under the Elizondo standard in convincingly persuading the Court.⁴²³

For many of the same reasons as above, I agree with the Court's majority to find that her claims under Brady also do not merit relief. The items of evidence that Applicant claims were allegedly suppressed or were otherwise not appropriately disclosed to her would not have helped her case nearly as much as she argues. Much of it was cumulative with other evidence, inconsistent with other evidence, or plainly self-contradictory. Portions that were painted as dispositive were qualitatively not so, and other items claimed to be commonly known rooted from indirect knowledge sourced from Applicant herself. And just like her actual innocence, new science, and false testimony claims above, Applicant's waiver of all live evidentiary hearings despite an eleventh-hour temporary reprieve prevents this Court, perhaps intentionally, from examining her claims under the fullest illumination.

As stated earlier, I remain sympathetic to Applicant's plight and the high stakes of the consequences she faces. Nevertheless, under our rule of law, I am forced to acknowledge that Applicant (ironically aided by the State) fails to meet the minimum bars for the different claims of relief she presents before this Court. For these reasons, I agree and join with the Court in denying relief on all of Applicant's claims.

CONCURRING OPINION

The child victim was beaten to death. Bruising and other injuries could be seen across the child's entire body—on the head, neck, back, buttocks, chest, arms, hands, legs, and feet. These injuries also included bite marks and missing hair from the scalp. The emergency-room doctor said that, in his 30 years of practice, the child's injuries—covering over 90% of the child's body—were “the absolute worst that I've ever seen.”

Applicant maintained that the head injuries that led to the child's death were accidental—due to a fall from a stairway—but this story evolved over time. Regardless of which version of her story one examines, however, none can explain the widespread nature of the injuries, nor can they explain certain specific types of injuries the child suffered—being bitten and having her hair pulled out. Paramedics found Applicant's demeanor to be unusually calm for a parent whose child was dead or on the verge of death, and Applicant told her younger sister over the phone, “Don't blame Robert. This was me. I did it.” And in an interview with the police, Applicant admitted to causing a majority of the child's various injuries, including pinching the groin, hard spanks to the body, and bite marks on the back.

Judge Richardson's comprehensive concurring opinion delves into the detail on why Applicant's claims lack merit, and I highly recommend reading it. But because a picture can be worth a thousand words, I also attach some photos depicting the child's injuries (see Appendix). With these comments, I join the Court in denying relief.

Appendix

DISSENTING OPINION

Death is different. Applicant, Melissa Elizabeth Lucio, was sentenced to death for the capital murder of her two-year-old daughter. The State and the habeas court both sought to fulfill the constitutional guarantees in this case by probing the claims advanced by her, including the trial and post-conviction evidence relevant to her guilt for capital murder and the sentence of death it authorized. The trial court has twice now returned to us from remand urging that we grant Lucio habeas relief with agreement from both parties on multiple grounds. Today, the Court instead disregards and disturbs those recommendations, despite the level of deference to which we owe them and denies Lucio habeas relief.

While I agree that Lucio's Brady claim warrants ¹ relief, I accept that conclusion for the legal one that it is and its concomitant standard of review. I write separately to address my concern with this Court's disposal of Lucio's “actual innocence” claim as it may threaten the constitutional guarantees of life and liberty. As I have said before, I believe this monicker is misleading. No court on habeas review is positioned to declare a person convicted by a jury “innocent” on account of new evidence. We instead ask the question, directed by our reading of the Constitution and its commands relative to the Great Writ, whether confidence in the judgment has been sufficiently undermined to upset its finality and require a new trial. The Court today disposes of Lucio's actual innocence claim on its own review of the record as the ultimate factfinder and concludes the Lucio “has not demonstrated by clear and convincing evidence” that, “despite the evidence of guilt that supports the conviction, no reasonable juror could have found [her] guilty in light of the new evidence.” Ante at 5.

Where I appear to disagree with my colleagues is with the legal standard applicable to trigger relief. I believe that question is materially informed by the nature of the interest—“life, liberty, or property”—involved and the consequences of erroneous deprivation. I accept that the “clear and convincing” evidence standard we set in Ex parte Elizondo ² and have since aptly described as “a Herculean task” is adequate to account for collateral attack based on erroneous deprivation of liberty. I am alone, to this point, in suggesting that our Texas Constitution would not accept that Herculean burden as proper when the question is whether a conviction resulting in a sentence of death is presented to us on habeas review. However, I reject the notion that relief from a claimed erroneous conviction resulting in a sentence of death could ever be denied to someone who has shown that an objectively reasonable jury most likely acquit them. See Ex parte Wood, No. WR-45,746-04, 2025 WL 2148862, at *11–15 (Tex. Crim. App. July 30, 2025). Once we decided to open the writ to review of post-conviction evidence of guilt or innocence in 1994,³ we effectively foreclosed (or should have foreclosed) the prospect of an execution (if not a conviction) where the question of guilt had moved to or below the realm of “maybe.”

It is undoubtedly murder, under our law, when a person “intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual.” Tex. Penal Code § 19.02(b)(2). That offense is removed, however, from the definition of capital murder for which death is an available punishment. Id. § 19.03(a). Capital murder, like any other charged offense, does not flow from the act of causing the death or another person. Ex parte Roberson, 726 S.W.3d 290, 301 (Tex. Crim. App. 2025) (Schenck, P.J., concurring and dissenting); id. § 6.02(a) (“A person does not commit an offense unless he [acts with the mental state] as the definition of the offense requires.”)

The mens rea required for capital murder is intentionally or knowingly. Our law does not authorize execution of a person for negligent or reckless homicide—or even “intend[ing] to cause serious bodily injury and commit[ing] an act clearly dangerous to human life that causes the death. See Tex. Penal Code §§ 19.02(b), 19.03(a).

The habeas court doubted Lucio's mens rea and found that the record provided evidentiary support to counter the State's allegation that she committed the actus reus intentionally or knowingly.⁴ Given the level of deference that we owe to the original trier of fact, particularly where, as here, that judge also presided over the original trial, we should be slow to turn aside its findings and conclusions.⁵

I believe that the Texas Constitution forbids the execution of a person who has shown new evidence demonstrating a reasonable jury would likely not convict and impose the death sentence. Ex parte Wood, 2025 WL 2148862, at *11–16. I also believe that serious doubt has been raised as to Lucio's actual innocence—twice urged by the fact finder who presided over her trial.  ⁶ Further, I believe that Lucio has met her burden to show that it is likely that no reasonable juror could have found her guilty.

As I discussed in Ex parte Wood and Ex parte Roberson, I believe an actual innocence claim is more appropriately recognized under the Texas Constitution and in capital cases involving a death sentence, proof of innocence by a preponderance would be more appropriate. Therefore, I would instead conclude that Lucio is entitled to habeas relief from her sentence of death in this case under that standard.

CONCLUSION

For these reasons, I would grant relief and I respectfully dissent.

The State concedes it withheld favorable, material evidence in violation of Applicant's constitutional due process rights and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The habeas court found that the State withheld favorable, material evidence in violation of Applicant's constitutional due process rights and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The habeas corpus concluded that this material exculpatory evidence was not ascertainable through the exercise of reasonable diligence on or before the date on which Applicant filed her initial habeas application. And finally, the habeas court concluded based upon these findings that Applicant is entitled to habeas corpus relief from her conviction and sentence in this case under the Due Process clause of the Fourteenth Amendment and Article 11.071. These findings and conclusions are supported by the record. Applicant is at least entitled to relief on her Brady claim. Everything else is just noise.

The facts in this case are devastating. This makes the State's failure to disclose material exculpatory evidence all the more tragic. Because the Court does not grant relief on Applicant's Brady claim, I dissent.

DISSENTING OPINION

Applicant was sentenced to death in 2008 for the capital murder of her two-year-old daughter, Mariah Alvarez. In the seventeen years since her conviction, Applicant has maintained her innocence. On April 25, 2022, forty-eight hours before her scheduled execution, this Court granted Applicant a stay of execution and remanded several claims raised by Applicant in the instant habeas application for further fact-finding. The habeas application has now returned from remand. The State, Applicant, and the habeas court all agree that Applicant should be granted post-conviction habeas relief and a new trial. The State concedes error and admits that the prosecutors in Applicant's original trial withheld material evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Today, in an unpublished per curiam opinion, the Court rejects the State's concession of error and Applicant's claim in two short sentences:

Applicant has not established that the evidence at issue was suppressed by the State. She has also failed to demonstrate that this evidence was material to guilt or punishment, in that there is a reasonable probability that, had the evidence been disclosed, the outcome of trial would have been different.

Ante at 5 (Court's Order). In doing so, the Court's order falls short by glossing over a key part of this case: The State's concession of error on Applicant's Brady claim. Moreover, the Court's order wholly fails to explain why Applicant does not meet her burden on her Brady claim. These are the same errors the Supreme Court of the United States recently suggested this Court made in Ex parte Newberry, No. WR-62,159-03. See infra at 41. This Court's denial of habeas relief in that case was vacated just three months ago. Newberry v. Texas, No. 25-862, ––– U.S. ––––, 146 S.Ct. 2744, ––– L.Ed.2d ––––, 2026 WL 1780084 (U.S. June 22, 2026). Rather than deny habeas relief, I would instead conclude that the habeas record supports the habeas court's findings of fact and recommendation that Applicant be granted a new trial. Therefore, I respectfully dissent.

I. Background

a. Trial and Appeal

Applicant was charged with and convicted of capital murder for the murder of her two-year-old daughter, Mariah. See Tex. Penal Code § 19.03(a)(8). After a jury trial, Applicant was sentenced to death. On direct appeal, this Court affirmed Applicant's conviction and sentence. Lucio v. State, 351 S.W.3d 878, 910 (Tex. Crim. App. 2011). Our opinion on direct appeal summarized the evidence as follows:

[A]t about 7:00 p.m. on Saturday, February 17, 2007, paramedics were dispatched to an apartment where Applicant lived with nine of her children and an adult male named Robert Alvarez, who was the father of at least seven of these children and whom Applicant referred to as her husband. One of the paramedics (Nester) testified that, when the paramedics entered the apartment, they found Mariah unattended and lying on her back in the middle of the floor not breathing and with no pulse. Nester observed that Applicant's “distant” and not “overly distressed” behavior was “so far out of the ordinary” that he “put it into the report.” Nester also testified that he “noted the fact that [Applicant] was not—she wasn't even within arm's reach of the child much less trying to gasp [sic], hold her, or trying to do anything to hold them [sic].”

Applicant told police and paramedics at the scene that Mariah had fallen down some stairs. Mariah was transported to a hospital emergency room where she was pronounced dead. The condition of Mariah's body indicated that she had been severely abused. There were bruises in various stages of healing covering her body, there were bite marks on her back, one of her arms had been broken probably about two to seven weeks before her death, and she was missing portions of her hair where it had been pulled out by the roots. The emergency room physician ([Dr. Alfredo] Vargas) testified that this was the “absolute worst” case of child abuse that he had seen in his 30 years of practice. Vargas also testified that his emergency-room visual and manual inspection of Mariah indicated no apparent signs of a head injury.

The chief forensic pathologist for Cameron and Hidalgo Counties (Farley), who conducted Mariah's autopsy on Monday, February 19, 2007, testified that Mariah's cause of death was “blunt force head trauma,” which would have occurred within 24 hours prior to her death, and it would have been immediately apparent that Mariah was in distress and in need of medical attention. Farley testified that Mariah suffered “multiple contusions” to her head area and that “blunt force head trauma ․ basically means, beat about the head with something–an object, a hand, a fist, or slammed.” Farley testified that these injuries would not have been caused by falling down some stairs and that this was the most severe case of child abuse she had ever seen.

On the night of February 17, 2007, several investigators questioned Applicant for about five hours, beginning at about 10:00 p.m. This interview was videotaped and was admitted into evidence in three separate DVDs (State's Exhibits, 3, 4, and 5). Applicant initially told the police that Mariah had fallen down some stairs on Thursday night, February 15, 2007. For about three hours, Applicant denied any knowledge of how Mariah became so badly bruised and suggested that her older children could have been responsible.

Texas Ranger Escalon began to question Applicant about two and one-half hours into the interrogation. Escalon testified at trial that, while he observed other investigators questioning her, he could tell from Applicant's demeanor that she was “beat” and that she was “hiding the truth.”

* * *

Escalon testified that Applicant began to “open up” with him after about 20 minutes of questioning. Applicant's recorded statement reflects that she told Escalon that she, and only she, had been “spanking” or “hitting” Mariah since sometime in December 2006. Applicant stated that Alvarez never “hit” or “spanked” Mariah and that Alvarez was unaware of most of the bruises on Mariah's body. Applicant also stated that none of the other children “beat” Mariah and that no one except Applicant “beat” Mariah. Applicant also stated that Mariah had been in her care for at least the previous three days. The jury also saw Applicant on the videotape demonstrate with a doll how she abused and “spanked” Mariah.

Applicant also stated that she would “hit” Mariah when Applicant got mad. Applicant also described how she pinched Mariah's vagina and how she would sometimes grab and squeeze Mariah's arm. Applicant described how she bit Mariah twice on the back at different times about two weeks before Mariah's death. Applicant said that on one occasion she bit Mariah on the back for no reason while she was combing Mariah's hair. Applicant said, “I just did it.” Applicant also stated that she would “spank” Mariah several times “day after day.”

Applicant stated that Mariah was “sick” on the day that she died, but that she was afraid to take Mariah to the doctor because of all the bruises on her. Applicant also stated that Mariah would not eat and that her breathing was heavy. Applicant said that Mariah slept all day on February 17, 2007, and that she would lock her teeth together when Applicant would try to feed her. This was consistent with “blunt force head trauma” symptoms that Farley described.

* * *

Escalon also testified that, when he questioned Applicant, he did not know, but he suspected, that Mariah had died from a fractured skull. Escalon can be seen and heard on the videotape informing Applicant that an autopsy would be performed on Mariah and asking Applicant “if they're going to find a fractured skull.” Applicant replied that an autopsy would show that Mariah did not have a fractured skull, and Applicant denied hitting Mariah in the head.

* * *

A police officer (Villarreal) testified that he allowed Applicant to make a cell-phone call to her sister while he was transporting Applicant to a dental office for a dental mold. Villarreal testified that Applicant appeared to be agitated and that he heard her say during the telephone call, “Don't blame Robert. This was me. I did it. So don't blame Robert.”

Id. at 880–84 (references to “appellant” modified to “Applicant”).

b. Post-Conviction Habeas

This Court denied habeas relief on Applicant's initial Article 11.071 writ. Ex parte Lucio, No. WR-72,702-02 (Tex. Crim. App. Jan. 9, 2013) (mem. op., not designated for publication).

After exhausting her state court remedies, Applicant filed a federal habeas application for post-conviction relief. On July 29, 2019, a three-judge panel of the United States Court of Appeals for the Fifth Circuit reversed her conviction and ordered a new trial. Lucio v. Davis, 783 F. App'x 313, 325 (5th Cir. 2019). The panel found that the trial court's exclusion of certain testimony “deprived [Applicant] of the right to present a complete defense” because Applicant was unable to “meaningfully dispute the importance and meaning of the videotaped interview” and confession. Id. at 321. Less than two years later, on February 9, 2021, the en banc Fifth Circuit, by a 10-7 vote, reversed the original panel's opinion. Lucio v. Lumpkin, 987 F.3d 451, 487 (5th Cir. 2021). A majority of judges on the en banc Fifth Circuit concluded that 28 U.S.C. § 2254(d) barred relief. Id. at 487; see also id. at 490 (Southwick, J., concurring). The United States Supreme Court denied certiorari. Lucio v. Lumpkin, ––– U.S. ––––, 142 S. Ct. 404, 211 L.Ed.2d 216 (2021).

c. The instant writ

With Applicant's federal habeas remedies exhausted, the State sought an execution date. Applicant's execution was scheduled for April 27, 2022. Applicant filed the instant habeas application on April 18, 2022. In the instant habeas application, Applicant raised nine claims:

(1) but for the State's use of false testimony, no juror would have convicted her; (2) previously unavailable scientific evidence would preclude her conviction; (3) she is actually innocent; (4) her trial counsel provided constitutionally ineffective assistance; (5) the State suppressed favorable, material evidence in violation of Brady v. Maryland; (6) the State violated her Sixth Amendment right to be free from uncounseled pretrial interrogation; (7) her conviction and death sentence are tainted by juror misconduct; (8) gender bias tainted her prosecution and contributed to her wrongful conviction; and (9) she is innocent of the death penalty.

Ex parte Lucio, No. WR-72,702-05, 2022 WL 1211313, at *1 (Tex. Crim. App. Apr. 25, 2022) (mem. op., not designated for publication).

We granted a stay of execution on April 25, 2022, two days before Applicant's scheduled execution. Contemporaneously, we remanded Applicant's first, second, third, and fifth grounds to the habeas court for a merits review. See id.

Initially, the parties entered agreed findings of fact and conclusions of law only on Claim 5—the Brady claim—which the habeas court signed. We remanded the habeas application for the habeas court to make findings on the remaining claims, “declin[ing] the trial court's invitation to engage in piecemeal litigation.” Ex parte Lucio, No. WR-72,702-05, 2024 WL 3051367, at *2 (Tex. Crim. App. June 19, 2024) (mem. op., not designated for publication). On remand, the habeas court signed additional findings of fact and conclusions of law, recommending that this Court find Applicant “actually innocent” of the charged offense, without the State's assent to Applicant's remaining claims.¹

II. Applicable Law

The Due Process Clause of the Fourteenth Amendment is violated when the prosecution suppresses evidence favorable to an accused upon request when “the evidence is material to guilt or punishment, irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87, 83 S.Ct. 1194. To establish a successful Brady claim, a habeas applicant must demonstrate:

(1) the State failed to disclose evidence, regardless of the prosecution's good or bad faith;

(2) the withheld evidence is favorable to him; [and]

(3) the evidence is material, that is, there is a reasonable probability that had the evidence been disclosed, the outcome of the trial would have been different.

Ex parte Miles, 359 S.W.3d 647, 665 (Tex. Crim. App. 2012).

III. Habeas Evidence

At the time of Mariah's death, Applicant had nine of her children living with her: Mariah (the victim), age 2; Sara Alvarez, age 3; Adriana Alvarez, age 4; Gabriel Alvarez, age 6; Robert “Bobby” Alvarez, age 7; her twin sons Richard and Rene Alvarez, age 9; Selina Lucio, age 14; and Alexandra Lucio, age 15. Applicant's oldest son, John Vincent Lucio (aka “John Alvarez,” age 17), and her two young adult daughters, Daniella Lucio (age 19–20) and Melissa “Little Melissa” Lucio (age 18), lived elsewhere. On the night of Mariah's death, Child Protective Services (“CPS”) dispatched Investigator Florence “Lucy” Arreola to the Harlingen police station where Applicant and her husband, Robert Alvarez, were being questioned. At the Harlingen police station, Arreola took statements from members of Applicant's family. These statements are reproduced in Applicant's Exhibit 20, a sixteen-page “Investigative Report” that Arreola created while interviewing witnesses. Importantly, Exhibit 20 also establishes that Arreola met and spoke with Detective Rebecca Cruz, one of Applicant's interrogating officers. Cruz relayed to Arreola that Applicant had confessed to hitting Mariah and that the interrogation was ongoing.

The Arreola Report reflects the following notes:

Selina Lucio:

Mariah stayed at home with her MO [(Mother — Applicant)] and other SB's [(siblings)]. When they returned her STFA [(Step-Father, Robert Alvarez)] went to check up on Mariah and she was dead. Selina denied seeing any bruises on Mariah except for the ones on her face. She stated that at the previous apartment Mariah fell one step but her STFA caught her ․ their MO would be frustrated but she wouldn't hit them. She stated that she and her sister Alexandra would get mad at their MO. Selina added that all of her younger SB's were on medication, except Mariah she was real quiet.

Alexandra Lucio:

Alexandra stated that Mariah had been throwing up and their MO thought it was because she ate a bad tamale but her STFA also ate tamales and he didn't get sick. She added that Mariah wasn't eating ․ when they returned her STFA went to check up on Mariah and found her dead. Alexandra stated that her MO didn't take Mariah to the doctor's office because she had an open case with CPS and Mariah had bruises on her eye from when she fell at the previous apartment. She admitted to seeing other bruises on Mariah's back. Alexandra denied being there when Mariah fell. Alexandra did admit to seeing her MO loose [sic] her temper with the children but that she would not hit them. She stated that her MO ․ would spank the children on their butt with their hand. She added that when her younger SB's would misbehave they would get yelled at ․ Alexandra stated that she suspected that both of her parents were using because they would stay up till 2 am and then have it out ․ She also stated that one of her SB's told her that their parent's room was real smokey. Alexandra stated that she didn't believe that her MO would hit Mariah because her MO would use drugs at night and she was taking care of Mariah on Friday when she fell from the stairs. She stated that was when they noticed Mariah having difficulty breathing. She stated that her MO would put her hand on her heart and it was still beating but her body was heavy. She added that on Saturday, Mariah would drink something, but that Friday she wouldn't eat, or drink and she wouldn't talk, she wouldn't move her arms or legs. She continued to add that on Saturday Mariah wouldn't wake up and her MO offered her something to drink and Mariah did drink something.

Robert Alvarez:2

Robert was then asked about his sister Mariah and he stated that she had died. Robert stated he has never seen anyone hit Mariah. Robert was asked if he ever saw Mariah cry and he stated he remembers an incident where she fell down some stairs. Robert stated that when Mariah fell she cried for a little bit and then continued playing.

Rene Alvarez:

Rene ․ stated because his sister Mariah was taken to the hospital ․ Rene was then asked if he ever saw anyone hit Mariah and he stated no.

Applicant also claims that the State suppressed sworn statements made by Alexandra (Applicant's Exh. 22) and Daniella (Applicant's Exh. 24), two of Applicant's eldest daughters, to law enforcement on the day of Mariah's death. Like the Arreola Report, the State disclosed summaries of Alexandra's and Daniella's statements through the law enforcement incident report. Relevant portions of each statement are reproduced below:

Alexandra's Statements — Exhibit 22:

[Applicant and Robert Alvarez] had been awake all night with the baby, Mariah Alvarez. Mariah had been breathing heavily since yesterday. I think she might have got sick yesterday when she went outside with my mom, but she was only outside for a little while. Robert said that she might have got sick when she ate a tamale, but Robert ate them and he didn't get sick.

After I woke up my parents, I went back to my room and finished cleaning it for about an hour or so, after that I went and ate with my brother's, Rene Alvarez, Richard Alvarez, Bobby Alvarez, Gabriel Alvarez, Adrian Alvarez and my Sister's, Sarah Alvarez, Selina Lucio and my parents. We were all in the living room. Mariah was in my parent's room asleep on their bed. While I was eating, Robert was calling his friends to see if he could go and pick up some furniture that he had bought from them.

At about 6:15 p.m. my sister, Daniella Lucio, got to our house with her two children, Clarissa Flores and Ricky Aguirre. When Daniella got to the house, Robert left with Selina, Rene and Richard to pick up the furniture from Robert's friends. My mom was telling Daniella that Mariah was sick, so Daniella went to my parent's room to check on her. I was in my brother's room with my mom and Clarissa and Ricky. Daniella came back to the room and said that Mariah looked real sick and Daniella was crying. My mom was sorting the clothes, since we had just moved to this house.

About 15 minutes later Robert came back home and he went to his room to check on Mariah. As soon as Robert went into the room I heard him yelling my mom's name. When we heard him yell, we all got up and ran to his room. When we went into the room I saw Robert holding Mariah in his arms, then he put her on the bed and started to do CPR on Mariah. Mariah was really pale and her arms looked stiff. Mariah's eye's were open and they were rolled back into her head. While Robert was doing CPR, Daniella went to call 911. Robert was still trying to do CPR on Mariah. He did this for about 15 or 20 minutes, until the ambulance got there.

Daniella's Statement — Exhibit 24:

The last time I was at my mom's house was on Super Bowl Sunday, which was about two weeks ago. At that time my little sister Mariah Alvarez looked really healthy and active. I didn't notice anything to be wrong with her. When I got to my mom's house, I went inside the house and into a bedroom that is going to be my brother's bedroom. My mom and step-dad, Robert Alvarez had just moved into the house. My mom, my sister, Alexandra Lucio and my brother, Gabriel Alvarez were all inside the bedroom. My mom was sorting out clothes. Mariah was in my parent's bedroom. My mom told me that she was worried about Mariah because she had been sleeping all day. My mom also said that Mariah had spent the day before sleeping and wouldn't eat. She said that every time she would try to feed her, Mariah would close her mouth very tight and wouldn't open it. After she told me this I went to check on Mariah. When I saw Mariah I noticed that she was breathing very heavily. I couldn't see her face, but I could see her body move up and down as she breathed. After that I went back with my mom.

About twenty minutes later, Robert got to the house. When Robert got there he went to the bedroom where Mariah was at. As soon as Robert went in there I heard him yelling my mom's name. As soon as we heard him, we all went running to the bedroom. When I went into the room I saw Mariah lying on the bed, she looked really pale and she wasn't breathing. That's when I got my sister's phone and called 911.

* * *

Yesterday I called my sister Alexandra. I wanted to talk to her and see how they were all doing. Alexandra told me that Mariah had fallen down some steps that are in front of the house. There are three steps. Alexandra said that Mariah had a black eye from the fall.

The incident report that was disclosed to Applicant relayed the following:

STATEMENT FROM ALEXANDRIA LUCIO

Alexandra Lucio (6/12/91) resides in household also and provided a written statement. In her statement she mentioned that on the date of incident, her sister Daniella arrived to their home at about 6:15 p.m. This is when Robert left with Selina, Rene, and Richard to get furniture from a friend.

Her mother Melissa told Daniella that Mariah was sick, so Daniella went to her parents’ room to check on Mariah. Alexandria was in her brother's room with her mother Melissa, and siblings Clarissa and Ricky.

Daniella came out of the bedroom crying and said that Mariah looked real sick. Her mother Melissa continued sorting clothes since they had just moved in. About 15 minutes later Robert got home and checked on Mraiah (sic) and exited the room yelling Melissa's name as he was holding Mariah in his arms. Robert put Mariah on the bed and started to administer CPR on Mariah.

Mariah was pale, arms stiff, eyes rolled back, and unresponsive. Daniella called the police and the ambulance got there in about 15 or 20 minutes. Alexandria said that Mariah left with EMS and the family came to the police station after this happened.

STATEMENT FROM DANIELLA LUCIO

Daniella provided a statement. Aside from the date of incident (2/17/07), Daniella had not seen her family since Superbowl Sunday (2/4/07) and Mariah appeared okay. Daniella arrived on date of incident at about 6:15 p.m.

Daniella said her brother Robert Alvarez had just moved in with her mother and her mother Melissa told her that she was worried about Mariah because she had slept all day for about two days and wouldn't eat. Melissa told Daniella that everytime she would try to feed Mariah she would close her mouth very tight and would not open it.

Daniella went to check on Mariah and she noticed Mariah was breathing very heavily. Daniella said she could not see Mariah's face, but she could see Mariah's body move up and down as she breathed. Daniella went out of her mother's room where Mariah was laying and went with her mother in a different room.

About 20 minutes later, Robert got to the house and went to where Mariah was. Robert yelled Melissa's name and Mariah was lying on the bed really pale and not breathing. Daniella got her sister's phone and called 911. The ambulance arrived about 15 minutes later and the family went outside to answer questions and later came to the police department.

Daniella said that she called her sister Alexandria a day prior to this to see how they were doing and Alexandria said that Mariah had fallen down from some steps in front of the house where there are three steps. Alexandria said that Mariah had a black eye from the fall.

Daniella said that in September of 2004, CPS had removed her and her siblings from their household due to mom's and Robert's drug use. They were using cocaine. Her siblings were given back to mom in November of 2006. Daniella said she did not know if her mom and Robert are still using drugs.”

IV. Habeas Court's Findings

The habeas court made the following findings relevant to Applicant's fifth claim:

1. The parties stipulate and the Court finds that at trial the State withheld favorable, material evidence, in violation of Applicant's constitutional due process rights and Brady v. Maryland and its progeny.

2. The Court finds that this suppressed, favorable, and material evidence, which includes firsthand statements from witnesses regarding Mariah's fall, and her deteriorating condition in the days following the fall, App. Exs. 20 (Arreola Report); 22 (Alexandra Lucio Statement); 24 (Daniella Lucio Statement), would have corroborated Applicant's defense that Mariah died from a head injury sustained in an accidental fall two days prior to her death. See 36 RR 17, 21, 30, 36, 46, 54.

3. The Court finds that the suppressed evidence would have led defense counsel to further investigate additional evidence confirming that accidental cause of death and the non-abuse explanations for the extensiveness of the child's bruising. See Kyles v. Whitley, 514 U.S. 419, 441, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (noting that the question under Brady is whether “disclosure of the suppressed evidence to competent counsel would have made a different result reasonably probable); Ex. A to Joint Advisory & Notice of Filing Exhibit (Rpt. of DeWitt and Sanchez).

* * *

Merits of the Claim

10. The parties stipulate and the Court finds that at trial the State suppressed three documents that contained evidence favorable to Applicant's defense. See App. Exs. 20 (Arreola Report); 22 (Alexandra Lucio Statement); 24 (Daniella Lucio Statement). Collectively, the suppressed evidence was material in that it undermines confidence in the outcome of Applicant's capital conviction because it provides evidentiary support for the defense theory that Mariah's death resulted from an accidental head wound consistent with a fall down the stairs.

The Suppressed CPS Investigation Report Contained Favorable Evidence

11. The Court finds that, on February 17, 2007, the night Mariah died, Child Protective Services (“CPS”) dispatched Investigator Florence “Lucy” Arreola to the Harlingen police station where Applicant and her husband, Robert Alvarez, were being questioned. See App. Ex. 19 (Arreola Decl.) at ¶¶ 11, 13. The parties stipulate and the Court finds that Investigator Arreola drafted a detailed investigative report (the “Investigative Report”), revealing that she interviewed relevant witnesses at the Harlingen police station who provided information in support of Applicant's defense. See App. Ex. 20 (Arreola Report).

12. The Court finds that the Investigative Report establishes that during Applicant's interrogation, Detective Rebecca Cruz, one of the interrogating officers, spoke with Investigator Arreola about the interrogation and Investigator Arreola's work. App. Ex. 20 (Arreola Report) at 89-90. The Court finds that law enforcement thus possessed information about the interviews conducted by CPS regarding the circumstances surrounding Mariah's death. 32 RR 34 (Det. Cruz testifying that she spoke with a CPS worker at the police station who was interviewing the children concerning what the children told the CPS worker). The State therefore had a duty to learn about those interviews and, if they possessed information favorable to Applicant's defense, to disclose that information to her. See Harm, 183 S.W.3d at 406 (citing Kyles 514 U.S. 419 at 437-38, 115 S.Ct. 1555, 131 L.Ed.2d 490); Ex Parte Miles, 359 S.W.3d at 665.

13. The Court finds that, rather than disclose Arreola's Investigative Report, the State produced to defense counsel a document that purported to represent Investigator Arreola's work on the case, App. Ex. 21 (Intake Information), but omitted critical aspects of the full report, including the descriptions of Arreola's interviews with five of Applicant's children, which she conducted on the night of Mariah's death, at the Harlingen Police Department, while Applicant and her husband were being questioned. See App. Ex. 20 (Arreola Report) at 90-93, 95; App. Ex. 39 (Weber Decl.) at ¶¶ 3-7.

14. The parties agree and the Court finds that the suppressed Investigative Report containing previously undisclosed interviews with Mariah's siblings on the night Mariah died includes information favorable to Applicant's defense. First, the suppressed Investigative Report indicates that another of Applicant's children, Robert “Bobby” Alvarez, who was seven years old at the time, was present when Mariah “fell down some stairs” and reported that “when Mariah fell she cried for a little.” App. Ex 20 (Arreola Report) at 92. Applicant's teenaged daughter Alexandra stated that she saw bruises on Mariah's eye “from when she fell at the previous apartment.” App. Ex. 20 (Arreola Report) at 91.

15. Second, the suppressed Investigative Report revealed that all of Applicant's children told Arreola that their mother was not abusive to them or Mariah. App. Ex. 20 (Arreola Report) at 90-92. Specifically, Bobby told Investigator Arreola that “he has never seen anyone hit Mariah.” App. Ex. 20 (Arreola Report) at 92. The suppressed Investigative Report also reveals that Alexandra told Investigator Arreola that she “didn't believe that her [mother] would hit Mariah” and that whenever she disciplined the other children, she only “spanked” them “on the butt with her hand.” App. Ex. 20 (Arreola Report) at 91. Two other children, Rene (age 9) and Selina (age 15), likewise told Investigator Arreola that they had never seen their mother hit Mariah or her other children. App. Ex. 20 (Arreola Report) at 90, 92.

16. Third, the parties agree and the Court finds that the suppressed Investigative Report also includes information regarding Mariah's condition in the days before her death, App. Ex. 20 (Arreola Report) at 90-91, which informs the defense theory that Mariah's health declined after her fall down the stairs. See Ex. A to Joint Advisory & Notice of Filing Exhibit (Rpt. of DeWitt and Sanchez). Specifically, Alexandra told Investigator Arreola that “Mariah had been throwing up,” which Applicant “thought ․ was because she ate a bad tamale,” and that Mariah then stopped eating. App. Ex. 20 (Arreola Report) at 90-91. Alexandra described how the family “noticed Mariah having difficulty breathing” the night before she died. Id. at 91, 83 S.Ct. 1194. Additionally, while the prosecution at trial attributed Mariah's dehydration at the time of death to abuse, the suppressed report contains Alexandra's account that Applicant repeatedly tried to get Mariah to drink something in the two days between her fall and her death, and that Applicant was visibly distressed by Mariah's deteriorating condition. Id.

Suppressed Sworn Statements to Police from Two of Applicant's Children Contained Favorable Evidence

17. The parties agree and the Court finds that at trial the State also suppressed two sworn statements that Applicant's children, Alexandra and Daniella, each made to Harlingen police on the night Mariah died, February 17, 2007. See App. Ex. 22 (Alexandra Lucio Statement) & App. Ex. 24 (Daniella Lucio Statement).

18. Instead of providing the defense with Alexandra and Daniella's full sworn statements from the night Mariah died, prosecutors gave the defense only summaries of their statements that omitted the exculpatory information discussed directly below. See App. Ex. 23 (Alexandra Lucio Statement Summary); App. Ex. 25 (Daniella Lucio Statement Summary).

19. The parties stipulate and this Court finds that Applicant's counsel first discovered the sworn statements from Alexandra and Daniella in 2019 when the District Attorney's office under the administration of Mr. Luis V. Saenz permitted Applicant's counsel to conduct an in-office review of case files in the District Attorney's office. The parties stipulate and this Court finds that the District Attorney's office under the administration of Mr. Luis V. Saenz, who came into office in 2013, did not add to, remove from, nor alter the original case file or its contents. The parties further stipulate that the sworn statements disclosed by the State in 2019 represent favorable, material evidence entitling Applicant to relief.

20. The parties stipulate and the Court finds that Alexandra's sworn statement to police, made on the night Mariah died, contained evidence favorable to Applicant's defense. The statement corroborated Applicant's account of Mariah's injuries and declining health in the days between Mariah's fall and her death. App. Ex. 22 (Alexandra Lucio Statement). Further, Alexandra's observation of Applicant's concern for Mariah over a 48-hour period prior to her death contradicted other evidence that Applicant inflicted a fatal head wound on Mariah within 24 hours of her death and then showed little concern as to her condition. See id.

21. Specifically, Alexandra avers in her sworn statement that Applicant and Mariah's father “had been awake all night with the baby” the night before she died because she “had been breathing heavily.” App. Ex. 22 (Alexandra Lucio Statement) at 1. In her statement, Alexandra attributed Mariah's condition to illness—that Mariah “might have got sick yesterday when she went outside with” Applicant—rather than abuse. Id.

22. The parties agree and the Court finds that the sworn statement from Applicant's twenty-year-old daughter, Daniella, also contains favorable evidence. Daniella observed in her statement that Mariah “looked really healthy and active” two weeks before she died, and that she “didn't notice anything to be wrong with her,” App. Ex. 24 (Daniella Lucio Statement) at 1. Daniella likewise averred that on the day of her death Applicant was “worried” about Mariah because she had been “sleeping all day” and “wouldn't eat,” because “Mariah would close her mouth very tight and wouldn't open it.” Id. Daniella also observed Mariah “breathing heavily.” Id. Further, Daniella informed police that, before she died, Alexandra had called her to tell her about Mariah's fall down steps. Id.

The Cumulative Impact of the Suppressed Evidence Was Material

23. The parties agree and the Court finds that the cumulative impact of the suppressed evidence detailed above is material because intentional infliction of serious bodily injury resulting in death is an element of murder, and the suppressed evidence, viewed cumulatively and in light of the record as a whole, provides evidentiary support for the defense that Mariah's head injury was accidental, and counters the State's evidence that the injuries could have only been the result of intentional abuse.

24. Specifically, the Court finds that, collectively, the suppressed evidence revealed the following material facts in support of Applicant's defense:

• All of Mariah's siblings who were interviewed by CPS Investigator Arreola the night Mariah died denied that Applicant ever hit Mariah or her other children, see App. Ex. 20 (Arreola Report);

• Several of Mariah's siblings corroborated Applicant's assertion that Mariah fell down some stairs at the family's previous home, and Bobby, Mariah's older sibling, witnessed her fall, see App. Ex. 20 (Arreola Report);

• Applicant's teenaged and adult children, Daniella and Alexandra, corroborated Mariah's decline in health after the fall in the two days prior to her death; specifically, that she was sleeping excessively, was having trouble breathing, vomited, and had lockjaw—all symptoms consistent with a diagnosis of DIC, see App. Exs. 20 (Arreola Report), 22 (Alexandra Lucio Statement), 24 (Daniella Lucio Statement);

• Applicant's teenaged daughter, Alexandra, observed bruises on Mariah's eye “from when she fell at the previous apartment,” App. Ex. 20 (Arreola Report); and

• Applicant's teenaged and adult children, Daniella and Alexandra, provided contemporaneous accounts of Applicant's concern for Mariah in the days leading up to her death. See App. Exs. 20 (Arreola Report), 22 (Alexandra Lucio Statement), 24 (Daniella Lucio Statement).

25. Further, the parties agree and this Court finds that disclosure of the suppressed evidence would have allowed defense counsel to present evidence to establish a fall occurred and to meaningfully challenge testimony suggesting that Applicant was lying about Mariah's accidental fall. Specifically, at trial, Detective Rebecca Cruz testified that she physically inspected the steps at Applicant's prior apartment and that, upon visual inspection, she did not find any evidence of blood, hair, or any other evidence that someone sustained a head injury on the steps. 32 RR 43. In effect, Detective Cruz testified that Applicant—and only Applicant—alleged that Mariah fell down the stairs at their prior apartment, and that there was no physical evidence to corroborate Applicant's assertion. Had defense counsel been aware of the contemporaneous witness statements provided to police and CPS workers that corroborated Applicant's account of Mariah's fall, the defense could have meaningfully challenged Det. Cruz's testimony that implied Applicant made up the fall.

26. Further, the Court finds that the State's failure to disclose evidence impeded defense counsel from fully investigating the cause of Mariah's death and from adequately challenging the prosecution's investigation in the case and the eventual theory of fatal abuse the prosecution presented at trial. Had defense counsel been aware of evidence corroborating Mariah's fall and observations of her declining condition that is consistent with the presentment of DIC, defense counsel could have provided the jury with evidence of a non-abuse cause of Mariah's bruising, to counter the State's evidence that the injuries could have only been the result of intentional abuse.

27. Expert reviews undertaken independently by the State and Applicant's counsel demonstrate that the suppressed eyewitness accounts of Mariah's injuries and declining health provided by Daniella, Alexandra, Selina, Richard, Rene, and Robert would have informed, and likely altered, forensic medical opinions at Applicant's trial. See Affidavit of Janice Ophoven Ex. 4 at, 12 (Ophoven Dec.); Ex. A to Joint Advisory & Notice of Piling Exhibit (Rpt. of DeWitt and Sanchez).

28. The State provided this suppressed evidence to forensic pathologist Dr. Marguerite DeWitt and law enforcement expert Dr. Michael R. Sanchez. Considering this suppressed evidence in the context of the other medical evidence in the case, Drs. DeWitt and Sanchez concluded that the likely cause of Mariah's death was an accidental fall resulting in head trauma. Ex. A to Joint Advisory & Notice of Filing Exhibit (Rpt. of DeWitt and Sanchez).

29. The Court finds that the cumulative effect of the suppressed evidence discussed above was material and that there is a reasonable probability that, in light of all the evidence in this case, the outcome of Applicant's case would have been different had the withheld evidence been timely disclosed.

Based on these findings, the habeas court made the following conclusions of law on Applicant's fifth claim:

30. This Court concludes that material exculpatory evidence discussed above was not “ascertainable through the exercise of reasonable diligence on or be-fore” January 13, 2011, when Applicant's initial habeas application was filed. See Tex. Code Crim. Proc. art. 11.071, § 5(e).

31. The Court concludes that the State had a duty to disclose at trial the exculpatory statements of Applicant's family members under Brady yet suppressed them in violation of Applicant's due process rights.

32. The Court concludes that all the suppressed evidence, detailed in Finding 18, supra and contained in the Investigative Report (including the contemporaneous accounts of several of applicant's children) and the sworn witness statements of Daniella and Alexandra Lucio was material because there is a reasonable likelihood that it affected the judgment of the jury.

33. The Court concludes that had the suppressed Brady material been disclosed to the jury, there is a reasonable probability that the outcome of the trial would have been different.

34. Specifically, the Court concludes first that Applicant's account of Mariah's fall and declining health would not have been discredited by the prosecution if the corroborating statements of her children were available to the defense. Second, Applicant's corroborated account of Mariah's fall and declining health would have led the defense to rebut Dr. Farley's testimony that only abuse could have caused Mariah's condition with evidence that Mariah was not abused, and her condition was caused by DIC [(Disseminated Intravascular Coagulation (DIC)] after the fall.

35. The Court concludes that Applicant has met her burden of proof, by a preponderance of the evidence, that she would not have been convicted in light of the suppressed evidence.

The Court concludes that Applicant is entitled to habeas corpus relief from her conviction and sentence in this cause under the Due Process Clause of the Fourteenth Amendment and Article 11.071 as presented in Claim 5.

V. Analysis

a. Was the evidence suppressed?

Applicant must first show that the State failed to disclose evidence “known to the prosecution but unknown to the defense.” Miles, 359 S.W.3d at 665 (quoting United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976)). The “State” includes “other lawyers and employees in [the prosecutor's] office and members of law enforcement connected to the investigation and prosecution of the case.” Id. (first citing Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995); then citing Ex parte Reed, 271 S.W.3d 698, 726 (Tex. Crim. App. 2008)). The State's duty to disclose evidence under Brady is not relieved merely because the prosecutor is personally unaware of the evidence. See id.

Pre-trial, there were repeated issues with the State timely providing Applicant with certain documents. This pattern of untimely disclosures came to a head during a pre-trial hearing on June 25, 2008. At that pre-trial hearing, Assistant District Attorney Al Padilla told the trial court that the District Attorney's Office had taken into possession about twelve or thirteen volumes of records. While some of the documents had been previously disclosed to Applicant's trial attorneys, anything identified after February 2007 had not been disclosed. Padilla represented that he had reviewed the documents for Brady and exculpatory materials and had marked them accordingly. Due to the volume of documents in the State's possession, the trial court allowed defense counsel to review the materials and to obtain as few or as many copies of the documents as counsel requested. The trial court entered a brief recess so that counsel could conduct “a cursory look” and determine what copies were needed. After that recess, defense counsel asked for copies of all the CPS files and of everything else the State had failed to disclose since February 2007. The trial court ordered the District Attorney's office to make copies of everything requested and to provide the copies to defense counsel.

Attached to Applicant's habeas application is an affidavit executed by Gretchen E. Weber, a paralegal employed by the Federal Public Defender Capital Unit for the Western District of Texas. She obtained the paper and digital files held by Margaret Schmucker, Applicant's appellate counsel, which “included the boxes of files [Weber] received from trial counsel Peter Gilman and Adolfo Cordova as well as her work-product.” Weber, along with two colleagues, reviewed the files in the Cameron County District Attorney's Office and “scanned thousands of pages of documents.” Then she used both visual inspection and computer-assisted searches to determine whether certain documents attached to Applicant's habeas application were among the files possessed by Schmucker, Gilman, and Cordova. For this comparison, she used the documents provided by Schmucker and the Texas Department of Family and Protective Services (CPS) and the documents the District Attorney's Office had allowed her to scan. Weber determined that Applicant's Exhibits 20, 22, 23, 33, and the documents attached to Exhibit 26 were not among the files possessed by Applicant's trial and appellate attorneys.

Of main concern to Applicant's Brady claim is Exhibit 20, the Arreola Report. The Arreola Report's “Intake Received” date is notated as February 17, 2007, and its “Investigation Approved” date is notated as April 30, 2007. While the Arreola Report was not among the documents possessed by prior counsel, Exhibit 21 (the Intake Document) was. That document lists Investigator Arreola as the caseworker, shares the same intake date as the Arreola Report, describes the same incident that led to Mariah's death, and looks like a short-hand rendition of the Arreola Report, but uses a different case number than the Arreola Report. Investigator Arreola does “not recognize [it] as a CPS form.” And according to Investigator Arreola, “It appears that someone copied information from a CPS intake form and pasted it into th[e] document.”

Applicant's habeas application alleges that rather than turning over the Arreola Report, the prosecution produced an inferior document that looked like Investigator Arreola's report—the Intake Document. This allegation is supported by the habeas record. To start, law enforcement was on notice of Arreola's investigation. Exhibit 20 establishes that Arreola met and spoke with Detective Cruz, one of Applicant's interrogating officers. Cruz relayed to Arreola that Applicant had confessed to hitting Mariah and that the interrogation was ongoing. The Arreola Report was completed after February 2007 and would have been subject to the trial court's June 25, 2008, pre-trial order that the DA's office produce copies of every document not disclosed since February 2007. But the Arreola Report was not in Applicant's former attorneys’ files. It appears that the State disclosed the Intake Document instead of the Arreola Report, which is why the Intake Document, not the Arreola Report, was in trial and appellate counsels’ files. Assuming that each document was disclosed to counsel, it would be strange for Applicant's former attorneys not to have kept a copy of the Arreola Report, because the Arreola Report is the one that contains the more substantive, useful information. Assuming that each document was available for copy via the DA's open-file policy, it would be even stranger for Applicant's attorneys to have copied and kept the two-page Intake Document and disregarded the sixteen-page Arreola Report. It would be stranger still for this Court to disregard those oddities, the State's concession of error, and the habeas court's findings of fact and conclusions of law to conclude that the State did not suppress the Arreola Report. Rather, the natural interpretation of these facts is that Applicant established by a preponderance of the evidence that the State suppressed the Arreola Report. And if the suppression question was a close call—and it is not—that is even further reason to defer to the habeas court's finding that the State suppressed the Arreola Report.

b. Was the evidence favorable?

Next, Applicant must establish that the withheld evidence is favorable to her case. Favorable evidence is evidence that, if disclosed and used effectively, “may make the difference between conviction and acquittal.” United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). It includes exculpatory evidence and impeachment evidence. Miles, 359 S.W.3d at 665. “Exculpatory evidence is that which may justify, excuse, or clear the defendant from fault, and impeachment evidence is that which disputes, disparages, denies, or contradicts other evidence.” Id. (first citing Harm v. State, 183 S.W.3d 403, 408 (Tex. Crim. App. 2006); and then citing Thomas v. State, 841 S.W.2d 399, 404 (Tex. Crim. App. 1992)).

The Arreola Report may have justified, excused, or cleared Applicant from fault and is thus exculpatory. Investigator Arreola interviewed Mariah's siblings on the night of her death at the Harlingen Police Department while Applicant and her husband were being interrogated. It contains firsthand statements from Mariah's siblings about her fall and her deteriorating health in the days that followed. Applicant's defense at trial was that Mariah accidentally fell down some stairs two days before her death, and those injuries caused her death. The children's statements reflected within the Arreola Report corroborate Applicant's defensive theory.

When asked by Investigator Arreola, Selina Lucio “denied seeing any bruises on Mariah except for the ones on her face. She stated that at the previous apartment Mariah fell one step but her [stepfather] caught her.” According to Selina, Applicant would never hit the children.

Alexandra Lucio told Investigator Arreola that while she did not personally witness Mariah's fall, “Mariah had bruises on her eye from when she fell at the previous apartment.” Like Selina, Alexandra said that Applicant would not hit the children. “She also stated that [Applicant] would spank the children on their butt with their hand.” Alexandra first observed Mariah's breathing difficulties after she fell down the stairs. She also told Investigator Arreola that “on Saturday, Mariah wouldn't wake up,” and, after not drinking, eating, talking, or moving her arms or legs on Friday, Mariah finally drank something on Saturday upon Applicant's offer.

The Arreola Report contains statements by Robert “Bobby” Alvarez and his brother Rene Alvarez. Bobby recounted an incident where Mariah “fell down some stairs” and cried before continuing to play. Further, neither Bobby nor Rene ever saw anyone hit Mariah.

The statements within the Arreola Report are exculpatory. Applicant was convicted of capital murder. See Tex. Penal Code § 19.03(a)(8). The State needed to prove that Applicant intentionally or knowingly caused the death of Mariah. Id. § 19.02(b)(1). The children's statements contained in the Arreola Report paint a different picture. On the day of Mariah's death, several of Applicant's children told a CPS investigator that Applicant never hit Mariah. Nor did Applicant inflict physical punishment to her children beyond a mere spanking. Multiple children also told Arreola that Mariah had fallen down the stairs, at least a step or two, before her death. Absent from these statements is evidence that Applicant was an abusive mother or took out her anger on her children. This evidence would support the argument that Applicant did not intentionally or knowingly kill Mariah. If it had been disclosed and used effectively, the Arreola Report may very well have made “the difference between conviction and acquittal,” Bagley, 473 U.S. at 676, 105 S.Ct. 3375, because it supported Applicant's defense and may have justified, excused, or cleared Applicant from fault, see Miles, 359 S.W.3d at 665. Thus, the record supports the habeas court's finding that the Arreola Report is favorable.

c. Was the evidence material?

The nondisclosure of favorable evidence violates due process only if it is “material” to guilt or punishment. Diamond v. State, 613 S.W.3d 536, 546 (Tex. Crim. App. 2020). “The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish ‘materiality’ in the constitutional sense.” Agurs, 427 U.S. at 109–10, 96 S.Ct. 2392. Applicant must demonstrate that, “in light of all the evidence, it is reasonably probable that the outcome of the trial would have been different had the prosecutor made a timely disclosure.” Hampton, 86 S.W.3d at 612. The exculpatory evidence and the evidence supporting the conviction are weighed against one another, see id. at 613, and the suppressed evidence is considered collectively, Kyles, 514 U.S. at 436, 115 S.Ct. 1555. The materiality inquiry asks whether, absent the undisclosed evidence, the applicant “received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Id. at 434, 115 S.Ct. 1555. “A ‘reasonable probability’ of a different result is accordingly shown when the Government's evidentiary suppression ‘undermines confidence in the outcome of the trial.’ ” Id.

Here, the nondisclosure of the Arreola Report undermines confidence in the outcome of the trial and is thus material. Had the entire Report—and not just the Investigative Report—been disclosed to Applicant, Applicant contends that she would have been able to present a stronger defense that Mariah's head injury was accidental and countered the State's evidence that Mariah's injuries were caused by intentional abuse. The State concedes that the Arreola Report is material, and the habeas court made a finding to that effect.

The Arreola Report is material for three independent reasons. First, the Arreola Report would have led to the development and presentation of other evidence. As has been described several times previously, the Arreola Report contained highly probative statements from several witnesses that could have testified about relevant, exculpatory events in the immediate lead up to Mariah's death.

Second, the Arreola Report would have meaningfully challenged the State's picture of Applicant as an abusive and neglectful mother. At trial, the State's theory was that Applicant was abusive and neglectful and that she inflicted a fatal wound to Mariah's head within the twenty-four hours before Mariah's death. The State's presentation of evidence was straightforward. The State first presented evidence that Applicant confessed to abuse and then buttressed that evidence with Dr. Farley's testimony describing the abuse that allegedly occurred. The evidence in the Arreola Report directly contradicts the State's theory. The Arreola Report revealed that Mariah's siblings denied that Applicant ever hit her children. And Alexandra told Investigator Arreola that Applicant repeatedly tried to get Mariah to drink water as Mariah's health declined, which would have undermined the State's theory that the child's dehydrated state was because of abuse.

Third, the Arreola Report corroborates Applicant's defensive theory. Applicant's theory at trial was that Mariah died as a result of complications from a fall. Bobby and Selina both disclosed that Mariah fell down the stairs at the family's former home. Alexandra saw bruises around Mariah's eyes “from when she fell at the previous apartment.” Alexandra discussed how Mariah's health began to decline after her fall down the stairs, which happened more than twenty-four hours before Mariah's death. Not only do these statements corroborate Applicant's version of events, but they were also made shortly after Mariah's death, shedding important light on the family dynamics. Had Applicant known of these statements, she could have used them to meaningfully challenge the prosecution's theory of the case. Considering the cumulative effect of the Arreola Report, the suppression thereof undermines confidence in the outcome of Applicant's trial. Thus, the record supports the habeas court's finding that the Arreola Report is material.

d. Was the evidence admissible?

The final Brady requirement is that the evidence at issue must be admissible. Miles, 359 S.W.3d at 665. Generally, “[t]he State does not have a duty to disclose favorable, material evidence if it would be inadmissible in court.” Id. (citing Kimes, 872 S.W.2d at 703). However, this Court has recognized that “[i]f inadmissible evidence would give rise to the discovery of other admissible evidence or witnesses, the state does have a duty to disclose that evidence.” Ex parte Mares, No. AP-76, 2010 WL 2006771, at *4 (Tex. Crim. App. May 19, 2010) (mem. op., not designated for publication); see also Sellers v. Estelle, 651 F.2d 1074, 1077 n.6 (5th Cir. 1981) (“[B]y enabling the defense to examine these reports, [the defendant] may have been able to produce witnesses whose testimony or written statements may have been admissible.”). We have also recognized that “evidence that may not be admissible may be material to preparation of the defendant's case and could become admissible as impeachment evidence under appropriate circumstances.” Mares, 2010 WL 2006771, at *4.

The Arreola Report itself may or may not be admissible. Assuming the Arreola Report is admissible, the statements contained within the Arreola Report may or may not be admissible. Nevertheless, Applicant could have utilized the Arreola Report to prepare her defense, develop witnesses to testify in her defense, and use portions of the Arreola Report as impeachment evidence at her trial. Thus, the Arreola Report satisfies this Court's admissibility requirement under Mares.

VI. Additional thoughts

a. The State's concession of error

A careful reader of this Court's opinions will note that I have previously rejected the State's concession of error in other habeas applications. See, e.g., Ex parte Mills, 710 S.W.3d 764, 773 (Tex. Crim. App. 2025) (Finley, J., dissenting); Ex parte Williams, 721 S.W.3d 263, 267–68 (Tex. Crim. App. 2025) (Finley, J., dissenting). One might ask why I do not reject the State's concession here as well. Two observations counsel against doing so. First, this is a capital case. Second, there is sufficient evidence in the record to support the State's concession of error in this case.

The finality of capital punishment requires assuring ourselves that only the guilty are executed. See Gross, O'Brien, Hu, & Kennedy, Rate of False Conviction of Criminal Defendants Who Are Sentenced to Death, 111 Proc. Nat'l Acad. Scis. 7230 (2014) (full-scale study of all death sentences from 1973 through 2004 estimating that 4.1% of those sentenced to death did not commit the offense); Ex parte Roberson, 726 S.W.3d 290, 292 (Tex. Crim. App. 2025) (Richardson, J., concurring) (“A death sentence is clearly final and, once carried out, hindsight is useless.”). Nationwide, between 1973 and 1995, prejudicial errors were identified in 68% of capital cases on appeal. Gelman, Liebman, West, & Kiss, A Broken System: The Persistent Patterns of Reversals of Death Sentences in the United States, 1 J. Empirical L. Stud. 209, 217 (2004). Assuring ourselves that only guilty defendants are sentenced to death becomes all the more important in an appeal where the State—the prosecuting authority opposing the defendant—concedes error to the reviewing court. Based on these considerations, concessions of error by the State in capital cases should be accorded greater weight.

Furthermore, as I have previously explained, the record sufficiently supports the State's concession of error in this case, as well as the habeas court's agreement with that concession. The State concedes that it suppressed evidence, that the suppressed evidence was favorable and material to Applicant, and that Applicant is entitled to a new trial. Supported by the record, the State's concession of error in this case is sufficient to grant Applicant a new trial. The Court errs to do otherwise.

b. The habeas judge

Another important factor that the Court ignores is that the habeas judge who recommends we grant Applicant post-conviction habeas relief—Judge Arturo Nelson—is also the original trial judge in Applicant's case. Based on his personal observation of the trial that Applicant now contends was tainted, Judge Nelson is the best situated person to judge whether the suppressed evidence was favorable and material to Applicant's defense. The Court today appears to fault Judge Nelson's handling of Applicant's habeas application when the Court takes issue with the fact that “[n]o evidentiary hearing was held” and that the habeas court's findings “exclusively reflect Applicant's interpretation of the evidence and are often unsupported.” Ante at 4 (Court's Order).

But where the Court finds fault, I do not. Judge Nelson presided over Applicant's trial. He—like the original jurors—witnessed all the testimony and was privy to all the evidence introduced at trial. He is in a better position than this Court to make the determination of whether the State's concession of error is credible. And he is in a better position than this Court to decide whether the alleged Brady evidence was indeed suppressed, favorable, and material. Moreover, Judge Nelson is permitted to rely on his own “personal recollection” to make the findings of fact and conclusions of law in this case. See Tex. Code Crim. Proc. art. 11.071, § 9. On balance, the Court should weigh Judge Nelson's personal experience with Applicant's case heavily. But the Court does not weigh Judge Nelson's recommendation heavily; it does not weigh his recommendation at all. In fact, the Court disregards Judge Nelson's recommendation entirely. It does so simply because there was no evidentiary hearing held. The Court fails to consider that no evidentiary hearing was needed because Judge Nelson could sufficiently rely on his personal experience to compare the evidence adduced at trial with the evidence that was suppressed.

c. The District Attorney

The final important factor in this case is the elected district attorney that prosecuted Applicant's capital murder trial. At the time of Applicant's trial, the elected district attorney of Cameron County was Armando Villalobos. Less than five years after Applicant's capital murder trial, Villalobos was tried and convicted in federal court “for his role in a South Texas bribery and extortion scheme.” U.S. Attorney's Office, Western District of Texas, Former Cameron County District Attorney Armando Villalobos Sentenced To Federal Prison In Connection With South Texas Bribery Scheme, U.S. Dep’t of J. (Feb. 11, 2014), https://www.justice.gov/usaowdtx/pr/former-cameron-county-district-attorney-armando-villalobos-sentencedfederal-prison. Villalobos, who was campaigning for re-election at the time of Applicant's capital murder trial, was sentenced to thirteen years in prison for accepting bribes and kickbacks for favorable acts of prosecutorial discretion, including minimizing charging decisions, pretrial diversion agreements, agreements on probationary matters and case dismissals. See id. This illegal scheme took place during the time Applicant was tried and convicted. See id. After a change in administration and another review of Applicant's case, the State then conceded error. Judge Nelson was in a good position to weigh these circumstances when making his findings on Applicant's habeas application.

Moreover, this is not a question of Villalobos simply being the elected district attorney at the time of Applicant's trial while subordinates in his office prosecuted Applicant's case. Villalobos actively participated throughout Applicant's trial:

Villalobos actively participated in Applicant's prosecution and was thereafter convicted of federal offenses and sentenced to prison before the current district attorney conceded error.

d. Ex parte Newberry

Newberry was convicted of capital murder and sentenced to life imprisonment in 1997. See Tex. Penal Code § 12.31 (West 1996). In his -03 writ, Newberry alleged that the then-District Attorney, Janelle Haverkamp, suppressed evidence in violation of Brady.

Haverkamp is now Judge Haverkamp of the 235th District Court of Cooke County. Newberry's trial counsel, John Morris, is now Judge Morris of the County Court at Law in Cooke County.³ John Warren, the current District Attorney of Cooke County, conceded error and recommended that Newberry receive habeas relief.⁴ But Warren and Haverkamp are presently embroiled in a separate conflict that led Judge David Evans, the Presiding Judge of the 8th Administrative Judicial Region, to recuse Haverkamp on nearly 400 cases “on grounds of Haverkamp [not] being impartial due to conflict with ․ Warren.” Sally Sexton, Haverkamp recused from nearly 400 cases, Gainesville Daily Register (Apr. 23, 2025), https://tinyurl.com/5988bhm4. Also in the writ record was an amicus curiae brief by attorney Rick Hagen. Hagen was the assistant district attorney on Newberry's case and represented the State on direct appeal. He described Newberry's instant habeas application as “an ambush on the administration of justice and based on a distorted, misleading, and cherry-picked record” and urged this Court dismiss Newberry's habeas application as subsequent.

Like in the present case, this Court denied relief in a perfunctory per curiam opinion that entirely failed to mention the State's concession of Brady error. See Ex parte Newberry, No. WR-62,159-03, 2025 WL 2658230, at *1 (Tex. Crim. App. Sept. 17, 2025). The Supreme Court has since then summarily vacated our denial of habeas relief and remanded the case to this Court “for further consideration in light of” the State's concession of error. Newberry, 2026 WL 1780084, ––– U.S. ––––, 146 S.Ct. 2744, ––– L.Ed.2d ––––.

This case bears striking resemblance to Newberry. Both Applicant and Newberry alleged Brady error by the prosecutor from their original trials. The State, after a review of the habeas claims and of the record, conceded error in both cases. And, in each case, the habeas court independently reviewed the record and agreed with the State's concession of error, finding that the concession was supported by the record. Finally, in both cases, the habeas court recommended that we grant relief. Yet, in both cases, this Court denied relief without explanation. Rather than inviting summary reversal—again—by the Supreme Court, this Court ought to recognize that the State's concession of error in Applicant's case is supported by the record and follow the habeas court's recommendation to grant relief. I dissent from this Court's decision not to do so.

VII. Response to the Judge Richardson’s Concurring Opinion

a. The concurring opinion incorrectly piecemeals the suppressed evidence

The overarching flaw in the concurring opinion is its piecemeal approach to Applicant's Brady claim. See, e.g., ante at 101, 96 S.Ct. 2392 (Richardson, J., concurring) (“On habeas, Applicant claims a number of items of Brady evidence that were not disclosed to her defense team leading up to trial ․ I address and evaluate each claim as the current record permits.”) (Emphasis added). The Supreme Court has repeatedly disavowed the concurring opinion's approach to Brady claims. As the Supreme Court explained in Kyles, “[t]he fourth and final aspect of Bagley materiality ․ is its definition in terms of suppressed evidence considered collectively, not item by item.” 514 U.S. at 437, 115 S.Ct. 1555 (emphasis added). The Supreme Court then went on to explain:

While the definition of Bagley materiality in terms of the cumulative effect of suppression must accordingly be seen as leaving the government with a degree of discretion, it must also be understood as imposing a corresponding burden. On the one side, showing that the prosecution knew of an item of favorable evidence unknown to the defense does not amount to a Brady violation, without more. But the prosecution, which alone can know what is undisclosed, must be assigned the consequent responsibility to gauge the likely net effect of all such evidence and make disclosure when the point of “reasonable probability” is reached. This in turn means that the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police. But whether the prosecutor succeeds or fails in meeting this obligation (whether, that is, a failure to disclose is in good faith or bad faith, see Brady, 373 U.S. at 87, 83 S.Ct. 1194, the prosecution's responsibility for failing to disclose known, favorable evidence rising to a material level of importance is inescapable.

Id. at 437–38 (internal citation cleaned up).

In the context of Kyles, the Supreme Court emphasized that while there was “room for debate whether ․ the majority in the Court of Appeals made an assessment of the cumulative effect of the [suppressed] evidence,” “the opinion also contain[ed] repeated references dismissing particular items of evidence as immaterial and so suggesting that cumulative materiality was not the touchstone.” Id. at 440, 115 S.Ct. 1555. These references included the following statements:

• “We do not agree that this statement made the transcript material and so mandated disclosure․ Beanie's statement ․ is itself not decisive․” Kyles v. Whitley, 5 F.3d 806, 812 (5th Cir. 1993);

• “The nondisclosure of this much of the transcript was insignificant․” Id. at 814;

• “Kyles has not shown on this basis that the three statements were material․” Id. at 815;

• “In light of the entire record ․ we cannot conclude that [police reports relating to discovery of the purse in the trash] would, in reasonable probability, have moved the jury to embrace the theory it otherwise discounted․” Id.;

• “We are not persuaded that these notes [relating to discovery of the gun] were material․” Id. at 816;

• “[W]e are not persuaded that [the printout of the license plate numbers] would, in reasonable probability, have induced reasonable doubt where the jury did not find it․ the rebuttal of the photograph would have made no difference․”Id.

The Supreme Court summarized the Fifth Circuit's approach this way: “The result reached by the Fifth Circuit majority is compatible with a series of independent materiality evaluations, rather than the cumulative evaluation required by Bagley.” Id. at 441, 115 S.Ct. 1555.

The concurring opinion's divide-and-conquer approach to Applicant's Brady claim falls into the same trap as the Fifth Circuit in Kyles (although the Fifth Circuit did not have the benefit of the Supreme Court's guidance as we now do). The concurring opinion first fails to address the actual evidence that Applicant alleges was suppressed. The evidence that the concurring opinion does address is addressed on its own, weighing that evidence individually against the cumulative force of the evidence adduced at trial. In doing so, the concurring opinion uses some of the same language that the Supreme Court rejected in Kyles. See ante at 112, 96 S.Ct. 2392 (Richardson, J., concurring) (“Thus, on this item of her Brady violation claims, one cannot conclude that [the evidence] materially casts Applicant's conviction in doubt”); 114 (“Alexandra and Daniella's undisclosed statements do not cast doubt so as to undermine confidence in Applicant's conviction”); 115 (“this fact was not material to her guilt”); 116 (“while Applicant's claim regarding Mariah's arm ․ might cast some small doubt, it is not substantial enough to undermine confidence in the outcome.”); 121–22 (“It is not likely that Guerrero's statements—even when viewed in the most positive light and in the context of all the other evidence—would have significantly tipped the scales in Applicant's favor.”) (Emphasis added).

The proper analysis is a cumulative one, where the sum total of the suppressed evidence is compared to the evidence at trial. Applicant's Brady claim succeeds “by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Kyles, 514 U.S. at 435, 115 S.Ct. 1555. As described at length previously, supra at 31, and in the trial court's findings of fact, supra at 16, Applicant has met her burden on that point.

b. The concurring opinion's flawed approach segues into another problematic mistake: A fundamental misunderstanding of suppression

The concurring opinion states that “[i]t is unclear how ․ information of Applicant's refusal to spank her children was ‘suppressed’ by the State.” Ante at 103, 96 S.Ct. 2392 (Richardson, J., concurring). This statement—and others—is wrong for two reasons. First, it misunderstands the thrust of Applicant's Brady claim. Applicant did not claim that “information of [her] refusal to spank her children was ‘suppressed’ by the State.” Cf. id. Rather, Applicant claimed that the Arreola Report in its entirety and the statements made by Alexandra and Daniella in their entireties were suppressed by the State. See Writ at 158 (“The prosecution failed to turn over information from CPS investigator Florence ‘Lucy’ Arreola. Ex. 20 at 90 (Arreloa [sic] Report).”); 161 (“Alexandra's statement to Investigator Arreola was consistent with her statement to Harlingen police, which also was suppressed.”) (original emphasis); 162 (“Instead of disclosing Daniella and Alexandra's sworn statements from the night of Mariah's death, prosecutors provided Ms. Lucio's defense counsel summaries of their statements that omitted the information described here.”); see also Findings of Fact and Conclusions of Law, supra at 16 (“2. The Court finds that this suppressed, favorable, and material evidence, which includes firsthand statements from witnesses regarding Mariah's fall, and her deteriorating condition in the days following the fall, App. Exs. 20 (Arreola Report); 22 (Alexandra Lucio Statement); 24 (Daniella Lucio Statement), would have corroborated Applicant's defense that Mariah died from a head injury sustained in an accidental fall two days prior to her death. See 36 RR 17, 21, 30, 36, 46, 54.”).

But the concurring opinion's misunderstanding of “suppression” does not end there. Consider the spanking example from above. The concurring opinion says that “any reasonably diligent inquiry or interview of close family members could have revealed it for Applicant's defense team. The State did not ‘hide the ball’ and suppress the information such that Applicant could not discover it and present her defense.” Ante at 103, 96 S.Ct. 2392 (Richardson, J., concurring). The concurring opinion also avers that “[o]ne would imagine that Applicant is at least somewhat familiar with her own character traits and would be aware of other family members who know her well enough to testify towards them.” Id. at 104, 96 S.Ct. 2392 n.360.

As the Supreme Court has explained, “[t]he rule of Brady arguably applies in three quite different situations. Each involves the discovery, after trial of information which had been known to the prosecution but unknown to the defense.” Agurs, 427 U.S. at 103, 96 S.Ct. 2392. It is certainly true that this Court has recognized that “the State does not have such a duty [to disclose under Brady] if the defendant was actually aware of the exculpatory evidence or could have accessed it from other sources.” Pena v. State, 353 S.W.3d 797, 810 (Tex. Crim. App. 2011).

As we explained in Pena, this Court held in Havard v. State that Brady was not implicated because the defendant had actual knowledge of the alleged Brady evidence. Id. at 810 (citing Havard v. State, 800 S.W.2d 195 (Tex. Crim. App. 1989)). This Court wrote:

In Havard, the State called a police officer to testify, and in preparation for his cross-examination, the defendant was given an offense report prepared by that officer. Havard, 800 S.W.2d at 204. The report included an exculpatory statement made by the defendant to law enforcement officials. Id. The defendant argued that a Brady violation occurred when the State failed to provide him with his prior statement. Id. We disagreed, holding that Brady did not apply because the defendant “knew of the fact that he made a statement to police and the content of that statement.” Id. at 204–05. We explained that he knew of the statement's existence and its content “as a matter of logic” since he was present at the time that he made it. Id. at 204. We also emphasized that a defense exhibit presented at trial, the script of a broadcast on a local radio station that included the defendant's statement, gave him notice prior to trial of his statement. Id. at 204–05.

Id. at 810–11.

Distinguishing Havard, we granted Brady relief in Pena. Id. at 815. Pena was convicted of possession of more than five but less than fifty pounds of marijuana. Unbeknownst to Pena, law enforcement recorded video and audio of a conversation that he had with law enforcement, during which Pena denied knowing that the substance he possessed was marijuana. The State disclosed the video without audio and represented that the video did not feature audio. Pena alleged the suppression of the audio portion of the videotape constituted a Brady violation. This Court held that even though Pena had personal knowledge of his statements to law enforcement by virtue of his participation in the conversation, he had no actual knowledge that a tangible record was made of those statements (i.e., the audio recording). In contrast, the State was (or should have been) aware that an audio portion of the videotape existed: “The video tape was created and preserved by law enforcement officers, agents of the State, who then maintained exclusive control over the evidence.” Id. at 810. Distinguishing Havard, this Court held that the evidence in Pena was significant: “The audio replicates the full exchange between [a law enforcement officer] and [Pena] ․” Id. at 811. “So although [Pena] might have known of his exculpatory statements, as he maintained all along that he had requested testing of the plant material and continuously denied that it was marijuana, he was unaware that an audio recording existed that captured those very remarks, among others.” Id. (emphasis added). Importantly, the Court never said that Pena should have pressed harder for audio or should have known or assumed that the videotape likely contained audio. The State's assurances were enough to absolve his attorneys of a duty to further investigate. This Court also emphasized that the suppressed evidence was the only piece of evidence substantiating Pena's defense: “Hence, [Pena] was unaware of the only audio evidence that was proof that he actually requested testing at the time of his arrest.” Id.

This understanding of “suppression” is consistent with a wide breadth of caselaw from both the Supreme Court and lower federal courts of appeals. See, e.g., Strickler v. Greene, 527 U.S. 263, 285, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) (“Although it is true that petitioner's lawyers—both at trial and in post-trial proceedings—must have known that [the complainant] had had multiple interviews with the police, it by no means follows that they would have known that records pertaining to those interviews, or that the notes that [the complainant] sent to the detective, existed and had been suppressed.”); Banks v. Dretke, 540 U.S. 668, 695, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004) (“A rule thus declaring ‘prosecutor may hide, defendant must seek,’ is not tenable in a system constitutionally bound to accord defendants due process.”); Lewis v. Conn. Comm'r of Corr., 790 F.3d 109, 121 (2d Cir. 2015) (“This requirement speaks to facts already within the defendant's purview, not those that might be unearthed. It imposes no duty upon a defendant, who was reasonably unaware of exculpatory information, to take affirmative steps to seek out and uncover such information in the possession of the prosecution in order to prevail under Brady.”); Dennis v. Sec'y, Pa. Dep't of Corr., 834 F.3d 263, 290 (3d Cir. 2016) (“[T]he United States Supreme Court has never recognized an affirmative due diligence duty of defense counsel as part of Brady, let alone an exception to the mandate of Brady as this would clearly be.”); United States v. Tavera, 719 F.3d 705, 712 (6th Cir. 2013) (“The Banks case makes it clear that the client does not lose the benefit of Brady when the lawyer fails to “detect” the favorable information.”); Amado v. Gonzalez, 758 F.3d 1119, 1134 (9th Cir. 2014) (“[B]ecause the prosecution is in a unique position to obtain information known to other agents of the government, it may not be excused from disclosing what it does not know but could have learned.”) (citing Carriger v. Stewart, 132 F.3d 463, 480 (9th Cir. 1997)).

Applicant's case is more similar to Pena than Havard. The disclosed evidence here contained none of the exculpatory evidence in the actual Arreola Report. The only favorable evidence in the Intake Report that was disclosed was that Applicant had tested negative on drug tests and that she was “crying & appeared to be taking [Mariah's death] pretty hard.” Applicant's Exh. 21. There is no indication in the Intake Report that any of the children spoke with CPS or law enforcement such that Applicant's attorneys would have been tipped off to talk to them. The case numbers on the Intake Report and the Arreola Report were different; if the case number on the Intake Report was entered into any sort of search engine, any results presumably would not have revealed the Arreola Report. Also, like Pena, the State in Applicant's case represented on the record that it had “produced everything to the defense.” This was in response to the trial court's order that the State produce “all of the CPS files.” Even more damningly, the State signed a “Rule 11 Agreement on CPS Document Discovery” in which it attested that “The State of Texas has made disclosure of all records of Family Protective Services, a.k.a., Child Protective Services, to [Applicant's attorney] ․” (emphasis added). Just like in Pena, Applicant's attorneys were assured multiple times, orally and in writing, that all CPS documents had been disclosed. But, as we now know, they were not. See also Banks, 540 U.S. at 695, 124 S.Ct. 1256 (“Our decisions lend no support to the notion that defendants must scavenge for hints of undisclosed Brady material when the prosecution represents that all such material has been disclosed.”).

Also similar to the evidence at issue in Pena, the Arreola Report itself carries significant persuasive value with a jury. A state agent recorded the children's statements, which would have corroborated what would otherwise have been deemed self-serving testimony by unreliable child witnesses at trial. Even if Applicant had been able to discover through reasonable diligence that her children stated they had not been hit by Applicant or seen Applicant hit their siblings, the only foreseeable fruit of that discovery is testimony of the same by the children at trial. That is not the same as a report generated by a state agent corroborating any such testimony that could have been presented. This Court recognized an analogous situation in Pena: even though Pena had personal knowledge that he had denied knowing the substance was marijuana, he had no actual knowledge that a record corroborating those self-serving statements was created by law enforcement. The same is true here: even if Applicant had knowledge of her children's statements, that does not mean that the Arreola Report itself was not suppressed. Had Applicant been furnished with the Arreola Report, Applicant would have: (a) investigated and discovered further exculpatory evidence; and (b) been able to corroborate that evidence (presumably testimony by the children) with a report generated by a state agent.

c. This leads to another problem: The concurring opinion fails to engage with the State's concession of error

Only once in the 132 pages of the concurring opinion does the concurring opinion mention the State's concession of error. See ante at 130 n.421 (Richardson, J., concurring) (“Despite an eleventh-hour chance to do so, the parties failed to provide the thoroughness this court and the gravity this case deserves.”). Instead, the concurring opinion repeatedly faults Applicant for waiving all live evidentiary hearings and not meeting her burden of persuasion. See id. at 2, 36, 37, 38, 63, 109, 129, 134. This is nothing short of a have-one's-cake-and-eat-it-too approach to denying Applicant postconviction habeas relief.

If Judge Richardson is to fault Applicant for waiving a live evidentiary hearing on her Brady claim, Judge Richardson should at a minimum at least address the reason why Applicant chose to do so: The State, reviewing Applicant's claims, made the decision to concede error and tell a district judge of this State that the prosecution had suppressed favorable, material evidence in violation of Brady during the course of a capital murder trial where the death penalty was on the table. There is likely no greater sin than for a prosecutor to suppress evidence (even unknowingly) in the context of a capital murder trial where the prosecution seeks the imposition of a death sentence. As this Court has previously recognized, “[i]t is derivative of the State's duty to ‘see justice done’ that the State is obligated to pursue the truth to the best of its ability and present its evidence truthfully to the court.” Ex parte Cook, 691 S.W.3d 532, 536 (Tex. Crim. App. 2024).⁵ And the State did exactly that: It conceded error. Based on that concession, Applicant waived live evidentiary hearings, and the habeas court agreed with her and the State that Applicant was entitled to habeas relief on her Brady claim.

d. Assuming that the concurring opinion viewed the Arreola Report in its entirety, the concurring opinion misses the point

The concurring opinion appears to imply that the Arreola Report was not favorable to Applicant because the Arreola Report “concluded that Mariah died of ‘homicidal injuries’ and that Mariah's parents (including Applicant) ‘provided inadequate explanation for the injuries.’ The report further noted that Applicant maintained an ‘extensive CPS case history’ with numerous CPS investigations. It described her as abusing drugs (including an admission of recent cocaine use) and alcohol out of a ‘compulsive use or need.’ ” Ante at 107, 96 S.Ct. 2392 (Richardson, J., concurring); see also id. at 107–08, 96 S.Ct. 2392 (discussing the “Risk Assessment” section of the Arreola Report).

This analysis misses the point. It would not have come as a surprise to anyone, much less the jury, that the Arreola Report reached the same conclusion as Dr. Farley, the medical examiner, who testified that Mariah's manner of death was homicide. The Intake Report also listed homicide as Mariah's cause of death. And, at trial, the State put on evidence that Applicant had drug problems. That the Arreola Report contained the same general conclusions does not render the Arreola Report disfavorable to Applicant.

Rather, the favorability question turns on all the other evidence in the Arreola Report: statements by Applicant's children and spouse that Mariah frequently fell down the stairs, had fallen down the stairs in the days prior to her death, and that none of Applicant's children had been hit by her nor seen Applicant hit Mariah. Not to mention the fact that there was no evidence in any of the preceding CPS records that Applicant was abusive towards her children. The ultimate issue was whether the State could prove that Applicant had intentionally or knowingly caused Mariah's death. The statements and evidence in the Arreola Report undermine the State's entire case. See Bagley, 473 U.S. at 667, 105 S.Ct. 3375 (describing favorable evidence as that which “may make the difference between conviction and acquittal”); see also Miles, 359 S.W.3d at 665 (“Exculpatory evidence is that which may justify, excuse, or clear the defendant from fault, and impeachment evidence is that which disputes, disparages, denies, or contradicts other evidence.”).

e. But what about the fall?

The concurring opinion rejects the evidence in the Arreola Report that Mariah may have fallen down the stairs in the days prior to her death. See ante at 109–12 (Richardson, J., concurring).

At the outset, the concurring opinion says that there are “numerous inconsistencies” about “the alleged fall down the stairs.” Id. at 109. This is the wrong way to view the suppressed evidence. Applicant did not claim that Mariah fell down an entire flight of stairs. Nor does Applicant have to explain away all signs of abuse on Mariah. All Applicant does have to do is offer an alternate explanation for Mariah's death. And Applicant did so, in two declarations from Dr. Janice Ophoven and Dr. Christopher M. Sullivan. Dr. Ophoven is a forensic pathologist and the director of the laboratory and director of quality management at St. Paul Children's Hospital. Dr. Sullivan is a pediatric orthopedic surgeon at Comer Children's Hospital at the University of Chicago. They averred:

Ophoven Declaration—Applicant's Exh. 4:

8. There was history of a significant fall on a stairway at the family's prior residence approximately two days prior to Mariah's death, on February 17, 2007. Such a fall carries significant risk for serious or fatal blunt force trauma to the head and neck. Biomechanical analysis of the injury potential of accidental injuries are frequently necessary to understand whether a particular event could have caused serious or fatal injuries. In criminal cases in which an accidental fall has been raised, biomechanical analyses have become critically important components of the forensic analysis. It appears that the nature of the child's fall was not well understood or even investigated in this case, and no assessment of the likely injury potential was undertaken. Despite this oversight, Dr. Farley testified that an accidental fall was conclusively excluded as a potential cause of the findings.

9. Falls remain the number one cause for traumatic brain injury in children of Mariah's age. In order to understand the issues in distinguishing child abuse from accidental falls a number of factors must be considered: the distance fallen; the nature of the surface onto which the child falls; forwards or sideways protective reflexes; there is no backwards protective reflex or righting reflex; whether a fall is in some way “ broken”; whether the child propelled himself; the mass of the body and of the head; what proportion of the total kinetic energy is absorbed in deforming the skull, the brain or the rest of the body, and in compressing the ground; this itself may be influenced by which body part hits the ground first; whether or not some kinetic energy is dissipated in causing fractures; whether the contact with the ground is focal or diffuse, that is, whether the fall is on to a point or on to a flat surface. From the materials I reviewed, these factors were not considered. Secondary brain injury can make the injuries even more difficult to interpret; for example hypoxic encephalopathy from an unprotected airway, or ischemic from cerebral oedema. Wilkins, B., Archives of Disease in Childhood 1997;76:393–397

10. Mariah had a history of a prior traumatic brain injury on March 22, 2006 which involved a documented fall with loss of consciousness while at daycare. At autopsy there was evidence of microscopic remote bleeding in the brain parenchyma. A prior injury could very well have made Mariah more vulnerable to a subsequent head injury.

11. Although the brain showed microscopic evidence of edema, the brain weight was not significantly higher than what is normal for a child Mariah's age. In fatal traumatic brain injury there is typically evidence of severe brain swelling with herniation or significant amount of intracranial blood. The neuropathology did not indicate severe brain swelling but instead documented hypoxic ischemic injury which is not specific for traumatic brain injury. The neuropathology examination also indicated that Mariah had enlarged cerebral ventricles which suggests an underlying condition that may reflect reasons for her delayed development, this also may have been related to her prior brain injury.

12. The death investigation was inadequate for a case of this nature. Witness statements indicate that Mariah had overt signs and symptoms of illness in the days preceding her death. These included observations of lethargy, somnolence, diminished appetite, teeth clenching, and vomiting. Her father noticed that after the fall she “kept holding her head” and he “could tell that her head was hurting her”. None of this appears to have been taken into account in accessing her injuries and cause of death.

* * *

21. The investigation into Mariah's death appears to have been significantly prejudiced, not evidence based, and without an adequate consideration of alternative issues. The medical evidence is consistent with a cause of death related to a fall down the stairs two days before Mariah's collapse and other complications that went unexplored. There are several potential causes and contributions to Mariah's injuries and death that have nothing to do with intentional force. Dr. Farley's inaccurate testimony about the timing of injury and conclusion of a recent beating causing death creates a risk of a serious miscarriage of justice in this case.

Sullivan Declaration—Applicant's Exh. 8:

Children who are learning to walk up to age 3 are referred to as “toddlers”. Their balance is not good and they fall a lot. Fractures are very common in toddlers. The tibia, radius, ulna and humerus are common sites of non-displaced “toddler's fractures”. In greater than 50% of these cases, the injury has not been witnessed and the parents do not know how the child was injured. These fractures can occur from a fall from a child's standing height.

If the tibia (lower leg bone) is involved the child will limp or stop walking. However, if the fracture is in the humerus or radius (arm bones), the child will guard the arm slightly, but this can be very difficult to identify. One in three healthy children will break a bone at some point during their childhood. Common causes of arm fractures among toddlers include falls and accidents on the playground.

Roughly one-third of bones break in a torsional fashion and the fracture line may be “spiral” in shape. “Spiral” fractures are associated with twisting forces, but that does not mean that a person grabbed an arm and twisted it. Research that I have performed, along with others, has confirmed that spiral fractures in the femur are neither sensitive nor specific for abuse. Scherl, Susan A. MD; Miller, Lisa MD; Lively, Nicole BA; Russinoff, Scott MD; Sullivan, Christopher M. MD, MPH; Tornetta, Paul III MD Accidental and Nonaccidental Femur Fractures in Children, Clinical Orthopaedics and Related Research: July 2000 - Volume 376 - Issue - p 96- 105. A number of witnessed accidental situations have resulted in spiral fractures, including falls, sports injuries, kids playing, and motor vehicle accidents.

* * *

Even if this were a spiral fracture, it is incorrect that spiral fractures of the humerus are usually “from tugging on the arm, or twisting the arm.” Ambulatory children get spiral fractures in a number of ways. Just a basic fall on the arm from a standing position or kids playing rough with each other could result in a spiral fracture.

* * *

The left humerus fracture in this case is not specific for abuse and is instead entirely consistent with having an accidental cause, such as a fall while walking. While the fracture would likely cause some pain initially, that pain would subside and a child of her age could continue to use her arm in daily activities without experiencing pain. Fractures of these kind are common among toddlers. There is nothing about the nature of this fracture that is indicates that it was the result of an intentional act or abuse.

Consistent with these declarations, the habeas court made the following finding:

21. The investigation into Mariah's death appears to have been significantly prejudiced, not evidence based, and without an adequate consideration of alternative issues. The medical evidence is consistent with a cause of death related to a fall down the stairs two days before Mariah's collapse and other complications that went unexplored. There are several potential causes and contributions to Mariah's injuries and death that have nothing to do with intentional force. Dr. Farley's inaccurate testimony about the timing of injury and conclusion of a recent beating causing death creates a risk of a serious miscarriage of justice in this case.

This is the crux of the flaw in the concurring opinion's analysis. The short-fall theory of the case provided an alternate explanation of Mariah's death that would have negated the State's theory that Applicant intentionally or knowingly caused Mariah's death. The children's statements in the Arreola Report corroborate Applicant's story of a short fall. That is the evidentiary value of the Arreola Report which makes it material and favorable to Applicant when properly considered in its entirety.

To the extent that the concurring opinion bemoans that “one cannot be certain as to the date of the fall, the time of day, the number of steps Mariah fell, whether there were witnesses with lines of sight when it happened, or even who was in the vicinity of the apartment at the time of the fall,” id. at 109, the concurring opinion yet again fails to faithfully follow a stage of the Brady inquiry. As the Supreme Court explained in Kyles:

The second aspect of Bagley materiality bearing emphasis here is that it is not a sufficiency of evidence test. A defendant need not demonstrate that after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left to convict. The possibility of an acquittal on a criminal charge does not imply an insufficient evidentiary basis to convict. One does not show a Brady violation by demonstrating that some of the inculpatory evidence should have been excluded, but by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.

514 U.S. at 434–35, 115 S.Ct. 1555. Applicant need not establish the who, what, where, when, why, and how of Mariah's fall. All that Applicant must show—and has shown—is that there was evidence in the Arreola Report that would have established an alternative cause of death for Mariah, one that did not involve intentional or knowing action by Applicant.

The concurring opinion then repeats two of its prior mistakes. First, the concurring opinion again faults Applicant for waiving a live evidentiary hearing. See ante at 109 (Richardson, J., concurring) (“Applicant voluntarily waived all live evidentiary hearing that might have helped harmonize ․ competing narratives [about the fall].”). Second, the concurring opinion avers that because of Applicant's waiver of a live hearing, “one is left in the same state that the initial trial jury faced when provided the inconsistencies from the original trial evidence: skeptical as to whether the fall even happened.” Id. at 109. Not to beat a dead horse, but Applicant waived a live evidentiary hearing (and her ability to harmonize these allegedly competing narratives) because the State agreed that the evidence of the fall in the Arreola Report constituted material, favorable Brady evidence. Furthermore, again, the concurring opinion reduces the inquiry to one of sufficiency. But, again, sufficiency is not the issue in front of us. Applicant does not need to establish that a fall actually happened to obtain habeas relief. The only question before this Court is whether the overwhelming evidence that a fall did in fact occur in the days leading up to Mariah's death reasonably would have changed the outcome of the trial. Miles, 359 S.W.3d at 665. There was more than sufficient evidence to establish that.

Lastly, the concurring opinion says that “Applicant was unable to adequately explain how Mariah sustained massive bruising covering 90% of her body from allegedly falling from just a few steps.” Ante at 110 (Richardson, J., concurring). Based on Applicant's failure to do so, the concurring opinion avers that “one cannot conclude that the awareness of Mariah's alleged fall by other family members (even in the context of all the other evidence available on habeas) materially casts Applicant's conviction in doubt.”⁶ Id. at 112.

Once again, the concurring opinion conflates “abuse”—the “massive bruising”—with “murder.” If the fall down the stairs can offer an alternate cause of death, one that does not involve Applicant intentionally or knowingly causing Mariah's death, that is material. What is more is that the concurring opinion errs by viewing the fall evidence in a vacuum. The State's theory at trial was that Applicant was abusive to Mariah and her children and took it too far one day, resulting in Mariah's death. But the evidence in the Arreola Report—the fall, the statements that Applicant never hit the children—rebuts the State's portrayal of Applicant as an abusive mother. Moreover, the evidence of the fall becomes increasingly important when coupled with Applicant's developed medical expert testimony. See infra at 63 (Dr. Ophoven Decl.). Had Applicant been able to put this evidence on at trial (or even further investigate and develop the evidence had it been properly disclosed by the State), she would have been able to both support her theory that Mariah died from complications from a short fall as well as defend against the State's portrayal of her as an abusive mother.

In that same vein, Applicant has put forward evidence that explains the extensive bruising that the concurring opinion heavily relies upon. See ante at 101, 111–12, 96 S.Ct. 2392 (Richardson, J., concurring). Dr. Ophoven's declaration, mentioned previously, also averred about alternative causes to Mariah's chest area. Applicant also submitted declarations from Dr. Michael Laposata and Dr. Harry Davis, that address another cause for Mariah's bruising. Dr. Laposata is the chair of department of pathology at the University of Texas Medical Branch-Galveston. Dr. Davis is an emergency medicine physician who was working in the emergency department at the Valley Baptist Medical Center when Mariah arrived the night of her death. They averred:

Ophoven Declaration—Applicant's Exh. 4:

13. Mariah's autopsy indicated she suffered from an acquired coagulopathy, a bleeding/clotting dysfunction, called Disseminated Intravascular Coagulation (DIC). DIC can result from trauma and infection. DIC is diagnosed clinically in living patients through clotting studies. Postmortem, the finding of fibrin thrombi in small vessels, especially in the lungs and brain, are a sign of DIC. I have not reviewed the histopathology in this case, however, fibrin thrombi were identified in the neuropathology report submitted by Dr. Nelson to Dr. Farley in August 2007. In my opinion, these findings signify the presence of DIC.

14. The finding of DIC is critical to the evaluation of the bruising observed at autopsy. DIC is known to lead to widespread, spontaneous bleeding throughout the body. This bleeding can be confused with abuse and can greatly complicate an autopsy. Individuals with DIC experience bleeding into the skin and surface soft tissues (termed purpura) that can be interpreted as bruising, with an appearance and distribution that can be mistaken for abuse.

* * *

17. DIC may also cause organ damage with bleeding with minimal pressure. Dr. Farley testified that she observed contusions to both lungs and a contusion to the right kidney which had to come from abuse, “punches or stomps—or slams.” But no trauma is necessary for organ damage and bleeding in the context of DIC. DIC can cause spontaneous bleeding in these and other organs. Additionally, CPR efforts, especially by inexperienced and/or distressed individuals, like family members, may have been the cause of inadvertent injury or exacerbation of existing injuries such as what was observed here.

Laposata Declaration—Applicant's Exh. 5:

9. Throughout my career, I have been involved in the treatment of hundreds of individuals who developed DIC as the result of accidental injuries, including patients who were injured in motor vehicle accidents and accidental falls. Trauma to the head is a notorious catalyst for DIC/clotting reactions. This is because when tissue factor is exposed to blood, clotting results. Tissue factor is in high concentration in the brain and clotting can quickly spread throughout the body when the brain is injured.

10. DIC can cause significant and widespread bleeding throughout the body: DIC can cause bleeding around the brain, eyes, within organs, and can cause organ damage. Patients with DIC can experience profound bruising throughout their body. This bruising can develop in minutes after an accidental injury and the bruises can enlarge greatly. DIC, and related bruising, also can develop or present days after an accidental injury. In patients with DIC, routine handling at home or in a hospital setting can cause significant bruising. It is not possible to tell the difference between a bruise from DIC and a bruise from abuse.

11. DIC-associated bleeding and bruising can be—and has been—incorrectly attributed to child abuse when it is caused by accidental trauma and infection. See, e.g., Martha E. Laposata and Michael Laposata, Children with Signs of Abuse: When is it Not Child Abuse? Am. J. Clin. Pathol. 2005; 123 (Suppl. 1):S119-S124.

12. I was asked by counsel for [Applicant] about the significance of the presence of fibrin thrombi (clots) in blood vessels documented during Mariah Alvarez's autopsy. The presence of fibrin thrombi in body tissues is consistent with DIC.

Davis Declaration—Applicant's Exh. 7:

8. Mariah's body temperature was elevated when it was taken at the Emergency Department. I recall her temperature being well over 100 degrees Fahrenheit.

9. When EMS arrived, I remember learning that EMS performed CPR at Mariah's home, meaning she had already been in cardiopulmonary arrest for quite some time when she arrived at the Emergency Department.

10. When a person dies, their body temperature begins to drop as biological functions cease. The fact that Mariah's temperature was elevated and that she had a fever even after being deceased for close to an hour strongly suggests she was battling an infection at the time of her death. Seeing an elevated temperature in a child who died from trauma is highly unusual.

11. I know State investigators prosecuted Mariah Alvarez's death as abuse. I have had considerable doubt about this conclusion. The presence of active infection at the time of Mariah Alvarez's death suggests alternate medical explanations for the bruising and internal bleeding that should have been explored.

f. The concurring opinion's description of the spanking evidence is entirely reductionist

One final note on the spanking evidence. The concurring opinion asserts that “[i]t is unclear how this information of Applicant's refusal to spank her children was ‘suppressed’ by the State.” See ante at 103, 96 S.Ct. 2392 (Richardson, J., concurring). But that is not the evidence that Applicant claims was suppressed. What was actually in the Arreola Report were statements by Applicant's children to CPS that Applicant's children never saw Applicant hit any of the children beyond spanking them for discipline.

To convict Applicant of capital murder, the State had to prove that Applicant “intentionally or knowingly cause[d] the death of [Mariah].” See Tex. Penal Code §§ 19.02(b)(1), 19.03(a). The State's theory of the case was one of physical abuse, and its evidence was entirely circumstantial. See supra at 3. The concurring opinion discusses at length what it describes as evidence of physical abuse to reject Applicant's Elizondo claim. But the Arreola Report contained evidence establishing that, in the days prior to Mariah's death, no one witnessed Applicant being physically abusive toward Mariah or her other children. The evidence in the Arreola Report directly contradicts the State's theory of the case and would have allowed Applicant to develop further witnesses and evidence. As discussed previously, this evidence renders the Arreola Report material for purposes of Applicant's Brady claim. See supra at 31.

g. The concurring opinion's reliance on Sonia's testimony raises a myriad of issues

The concurring opinion avers that “the absence of [the Arreola Report is] cumulative to other evidence and testimony.” Ante at 104, 96 S.Ct. 2392 (Richardson, J., concurring). To support this proposition, the concurring opinion relies on the trial testimony of Applicant's sister, Sonia. The concurring opinion states that Sonia “vehemently testified at trial during the defense's case-in-chief that Applicant would never hit her children” and that “Sonia went further in her testimony to portray Applicant as a completely non-violent and non-aggressive person.” Id. at 104–05, 96 S.Ct. 2392. The concurring opinion then states the following about Sonia's testimony:

Despite this much stronger evidence of non-violence, the jury inevitably did not find it credible. The record shows that there was evidence suggestive of the opposite. For instance, Sonia contradicted her own assertions by recounting the post-arrest phone call Applicant made to Sonia. As noted prior, Sonia recounted how Applicant repeatedly disputed Sonia's assertion that Applicant would never physically discipline her children.

Id. at 105–06.

The concurring opinion's reliance on Sonia's testimony to conclude that the Arreola Report was not “material” is problematic for several reasons.

First, Sonia was not a witness to the events immediately preceding Mariah's death. The children who gave the statements in the Arreola Report were. Furthermore, Sonia's testimony about Applicant's behavior as a child (and her alleged propensity for nonviolence) has no bearing on her parenting style and propensities as an adult. Even if it does, that evidence is certainly not “much stronger evidence of non-violence,” cf. id., than her children's own impressions of her parenting style—particularly statements from Applicant's children made at or near the time of Mariah's death.

Second, if the concurring opinion is right to find Sonia's testimony not credible, then that renders the statements in the suppressed Arreola Report even more material, for two independent reasons. The statements in the Arreola Report would have corroborated Sonia's testimony and rehabilitated her credibility. Evidence is not “merely cumulative” if it corroborates other evidence that is “unbelievable” on its own. See Arizona v. Fulminante, 499 U.S. 279, 298–99, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). Or, alternatively, the statements in the Arreola Report would have provided the jury additional defensive testimony that it could have considered in the event it found Sonia not credible. Either way, the concurring opinion is mistaken to intimate that Sonia's testimony renders the Arreola Report immaterial to Applicant's defense.

h. The rest of the concurring opinion

The remaining ninety-or-so pages of the concurring opinion conclude that Applicant's remaining claims also do not merit habeas relief. I agree with the concurring opinion's bottom-line conclusions, though I would suggest a far simpler path on Applicant's Elizondo claim.

i. Applicable Law

An applicant can obtain relief on the basis that she is actually innocent of the crime for which she was convicted in light of newly discovered evidence. Ex parte Elizondo, 947 S.W.2d 202, 205 (Tex. Crim. App. 1996). When asserting such a claim, an applicant must prove by clear and convincing evidence that no reasonable juror would have convicted her based on the newly discovered evidence. Id. at 210. This is a “Herculean” burden. Ex parte Brown, 205 S.W.3d 538, 545 (Tex. Crim. App. 2006). Newly discovered evidence is that which “was not known to the applicant at the time of trial, plea, or post-trial motions and could not be known to him even with the exercise of due diligence.” Ex parte Chaney, 563 S.W.3d 239, 274 (Tex. Crim. App. 2018). An applicant may rely on a single piece or multiple pieces of new evidence so long as the burden of proof is met, and the newly discovered evidence must affirmatively support the applicant's innocence. Id. To determine whether an applicant has met that burden, the court must weigh the newly discovered evidence against the State's case at trial to determine the probable impact the evidence would have had at trial if it had been available. Elizondo, 947 S.W.2d at 206.

ii. Habeas Court's Findings

The habeas court made the following finds relevant to Applicant's third claim:

114. Applicant is actually innocent; she did not kill her daughter.

* * *

Findings of Fact

121. The Court incorporates by reference the findings made supra as to Claims 5, 1, and 2. In addition, to address difference [sic] between the legal burden required for Applicant's innocence claim and her other claims, this Court will restate or summarize the findings pertinent to this claim.

122. The prosecution's Case against applicant rested on 2 points. First, the State presented observations of Applicant that remarked on her flat affect and her seeming lack of emotion when confronted and questioned by law enforcement, and then the State presented her custodial statements and interrogators’ interpretations of Applicant's demeanor during the interrogation. The point of this part of the State's case was to persuade the jury that Applicant was not distraught over Mariah's death because, as she ultimately said after many hours of custodial interrogation, she was responsible for it.

123. Second, the State presented testimony through the county medical examiner that, as a matter of medical/scientific certainty, Mariah's death could only have been result [sic] of a head injury during significant and ongoing abuse.

124. The State presented no witness or forensic evidence that identified Applicant as Mariah's abuser, neither at trial, nor in these habeas proceedings. Only Applicant's statement that she pinched, bit, and spanked Mariah linked Applicant to any bruise or other sign of trauma on Mariah's body.

125. None of the acts Applicant confessed to during her extended custodial interrogation constitutes “an act clearly dangerous to human life that cause[d] the death of an individual.” Tex. Penal Code § 19.02(b)(2).

126. The new medical evidence supports a non-abuse cause of death which the jury never heard: that Mariah's extensive bruising and death resulted from the effects of an accidental traumatic brain injury incurred after a fall down some stairs two days before she died.

127. The State's evidence outlined above was aimed at refuting Applicant's claim that Mariah died as the result of complications from an accidental fall. Through that evidence, the State argued that Mariah had to have died from a fatal head injury inflicted within 24 hours of her death by Applicant.

128. The jury was instructed that it had to find, beyond a reasonable doubt, that Applicant “intend[ed] to cause serious bodily harm” to Mariah and, in fact, “commit[ted] an act clearly dangerous to human life” that caused her death. Tex. Penal Code § 19.02(b)(4). Based on the evidence presented at trial, the verdict reflects that the jury accepted the State's evidence that Mariah's death was caused by an intentionally inflicted a blow [sic] to the head inflicted by Applicant.

129. The Court adopts for purposes of Claim 3 the following findings made on review of Claims 1, 2, and 5:

• There is clear and convincing evidence that Mariah fell on some stairs two days before she died, just as Applicant told police;

• There is clear and convincing evidence that Applicant was highly susceptible to making a false confession under the interrogation techniques used on her;

• There is clear and convincing evidence that Mariah's extensive bruising was not caused by abuse but rather a complication of her fall;

• There is clear and convincing evidence that Mariah's head injury was caused by an accidental fall on stairs two days before she died; and

• There is clear and convincing evidence that the injuries to Mariah that Applicant could have caused based on her confession, even if true, were not clearly dangerous to human life and did not cause Mariah's death.

Based on these findings of fact, the habeas court made the following conclusions of law:

130. Having engaged in the analysis required by Elizondo and its progeny, this Court finds that Applicant has satisfied her burden and produced clear and convincing evidence that she is actually innocent of the offense of capital murder pursuant to Tex. Penal Code §§ 19.02(b)(1), 19.03(a)(8), for “intentionally and knowingly” causing Mariah's death by “striking, shaking, or throwing [Mariah] with [her] hand or foot or other object.” 1 CR 9.

131. This court finds that no rational juror could have convicted Applicant of capital murder without the State's unconstitutional presentation of Dr. Farley, the medical examiner's false testimony that physical abuse was the only explanation for Mariah's death, that Mariah had adult-sized bitemarks on her body, and that the abuse that purportedly caused Mariah's death had to have occurred within twenty-four hours of her death, making it impossible for Applicant's defense that Mariah's health declined after an accidental fall two days earlier. Additional scientific evidence that the jury never heard, which further casts significant doubt on Applicant's guilt includes: (1) evidence that Mariah's injuries were entirely consistent with head trauma incurred by an accidental fall and declining health over the two days before her death;

132. The new evidence regarding the Applicant's exceptionally high risk of falsely confessing, rendering her custodial admissions unreliable; and the new scientific evidence that Ranger Escalon's testimony where he claimed he could discern Applicant's “guilt” by her demeanor and reactions is false as a matter of now scientific consensus.

133. Since new scientific advancements, informed by newly discovered evidence, have debunked and disproved the primary evidence relied upon by the State at trial—namely, the States [sic] medical examiner's testimony and the interrogating officer's conclusion of guilt through his “demeanor” testimony, and Applicant's custodial admissions—there is no eye witness or reliable, probative evidence to support a finding that Applicant intentionally and knowingly caused Mariah's fatal injuries and therefore, a conviction for capital murder cannot stand.

134. The Court therefore concludes that Applicant has met her burden of proof (i.e., clear and convincing evidence) to establish that she meets the Elizondo standard for actual innocence as no rational juror could have convicted Applicant of killing her daughter after hearing all of the evidence from her original trial alongside all of the new evidence she has presented.

135. The Court takes judicial notice of the record in State of Texas v. Roberto Antonio Alvarez, Cause No. 08-CR-1622-A, in which Applicant's husband was convicted of causing serious bodily harm by omission to a child—Applicant's daughter Mariah. The omissions of each parent were the same. Regardless of whether Mr. Alvarez told Applicant to take Mariah to the hospital, neither parent acted to obtain medical care in the two days between the fall on the stairs and Mariah's death.

136. The Indictment of Applicant did not state any facts that would have supported a lesser included offense of causing serious bodily injury by omission to a child.

137. Substantial bodily harm to a child by omission is not a lesser included offence [sic] of murder because, as stated supra, murder requires that the defendant commit an act clearly dangerous to human life, and that act caused the victim's death. Rodriguez v. State, 454 S.W.3d 503, 507–08 (Tex. Crim. App. 2014); Avellaneda v. State, 496 S.W.3d 311, 318 (Tex. App.—Houston [14th Dist.] 2016, no pet.).

138. For all these reasons, this Court concludes that there is clear and convincing evidence that no rational juror could convict Applicant of capital murder or any lesser included offense.

iii. Analysis

This Court has held “that the term ‘actual innocence’ shall apply, in Texas state cases, only in circumstances in which an accused did not, in fact, commit the charged offense or any of the lesser-included offenses.” Ex parte Kussmaul, 548 S.W.3d 606, 641 (Tex. Crim. App. 2018). Applicant's indictment alleged that Applicant:

on or about the 17th day of February, 2007 ․ in the County of Cameron and State of Texas, did then and there intentionally or knowing cause the death of an individual, namely, Mariah Alvarez, by striking, shaking, or throwing Mariah Alvarez with defendant's hand or foot or other object unknown to the Grand Jury, and the said Mariah Alvarez was then and there an individual younger than six years of age.

Murder is a lesser-included offense of capital murder. Moore v. State, 969 S.W.2d 4, 12 (Tex. Crim. App. 1998). Criminally negligent homicide is a lesser-included offense of murder. Thomas v. State, 699 S.W.2d 845, 847 (Tex. Crim. App. 1985). As is manslaughter. Moore, 969 S.W.2d at 9. Under Kussmaul, to prevail on a claim of actual innocence, Applicant must show by a preponderance of the evidence that she is not only actually, factually innocent of the charged offense—here, capital murder—but she must also demonstrate her actual, factual innocence of any lesser-included offenses.

Applicant cannot meet this burden. On initial remand, the State asked DeWitt & Sanchez Consultants, LLC to independently analyze Applicant's assertions that: (1) Farley testified falsely; (2) new scientific evidence proves that the State's bite mark evidence is invalid and that Applicant was at high risk for falsely confessing; and (3) Applicant is actually innocent. The parties jointly submitted the report as an exhibit for the habeas court to consider. As relevant here, the DeWitt and Sanchez Report states:

Based on our careful analysis of the entirety of the evidence, we cannot conclude that Ms. Lucio was solely responsible for the abuse Mariah suffered before her death. Ms. Lucio was only one of TEN possible abusers, all of whom had regular access to Mariah. There was a very real possibility that others in the residence abused Mariah. There was no investigation into each of the siblings in residence, to establish them as suspects, or to eliminate them as suspects.

The fact that Mariah had been removed from the home seems to have prevented Ms. Lucio and at least some of the siblings from bonding with her. This would make Mariah a likely target for abuse. Previous removal of the children from the household also motivated Ms. Lucio to avoid medical treatment for Mariah after her fall, for fear that CPS would accuse Ms. Lucio of abusing Mariah.

Although we cannot find sufficient evidence to support that accusation that Ms. Lucio personally inflicted the fatal abuse upon Mariah, Ms. Lucio certainly bears considerable responsibility and culpability for Mariah's death. In her purported confession, Ms. Lucio stated that she was “responsible” for Mariah's death. At the time, this may have seemed to the investigators to be an admission of Ms. Lucio having inflicted the fatal injury. However, Ms. Lucio herself admitted that she did not seek medical treatment for Mariah because “․they are going to accuse me․” Ms. Lucio's motive for not seeking medical care for Mariah after the fall was due to Ms. Lucio's fear that CPS would once again remove her children from the home.

While we do not believe that Ms. Lucio inflicted the fatal injury upon Mariah, we do believe that Ms. Lucio's intentional failure to seek medical attention for Mariah makes her “responsible” for Mariah's death. Additionally, Ms. Lucio did not maintain a safe environment for Mariah. Ms. Lucio was herself an abuser and serially neglectful. As a drug user, Ms. Lucio placed her children at considerable risk and allowed a drug addled chaotic environment to flourish in the household. Several of Mariah's siblings had behavioral or abuse issues. Ms. Lucio was most culpable in Mariah's death in the things she failed to do.

• When Mariah reportedly fell down the stairs, Ms. Lucio did not seek medical attention.

• After Mariah vomited later that day, a common sign of concussion, Ms. Lucio still refused to seek medical attention for Mariah.

• Subsequent to the fall, Mariah refused to eat or drink, by clenching her teeth and making the delivery of any food or drink impossible. Daniella Lucio stated that Melissa Lucio expressed concern that Mariah had not eaten. Yet Ms. Lucio still refused seek medical attention for Mariah.

• As Mariah was comatose all day on the 17th of February. Daniella Lucio observed Mariah's condition and, reportedly in tears, told Ms. Lucio that Mariah looked “real sick” ․ and still Ms. Lucio refused to seek medical attention for Mariah.

• It was not until Mr. Alvarez arrived home and checked on Mariah, finding her moribund, that EMS was finally called, but by then․ it was too late.

This serious pattern of neglect for her child's health and welfare certainly points to Ms. Lucio bearing considerable responsibility, through her inaction, for Mariah's death. However, the pattern of inactions by Ms. Lucio, regardless of their callousness, do not rise to the level of Capital Murder. Rather, we find that Ms. Lucio's conduct in this case would more accurately fit the charge of Manslaughter or Criminally Negligent Homicide.

(Original emphasis).

This Court has held that the elements for criminally negligent homicide are: (1) the defendant's conduct caused the death of an individual; (2) the defendant ought to have been aware that there was a substantial and unjustifiable risk of death from her conduct; and (3) the defendant's failure to perceive the risk constituted a gross deviation from the standard of care an ordinary person would have exercised under like circumstances. Montgomery v. State, 369 S.W.3d 188, 192–93 (Tex. Crim. App. 2012) (citing Tello v. State, 180 S.W.3d 150, 156 (Tex. Crim. App. 2005)). The record evidence, even in light of Applicant's purportedly new habeas evidence, establishes all of the elements for criminally negligent homicide. Applicant was aware that Mariah had fallen down the stairs, began to exhibit worsening signs of trauma (vomiting, refusing to eat or drink, unresponsiveness), and eventually died, all before Applicant sought medical care for Mariah.

Accordingly, the habeas court's finding that “there is clear and convincing evidence that no rational juror could convict Applicant of capital murder or any lesser included offense,” supra at 76, is not supported by the record. Because Applicant has failed to show, by a preponderance of the evidence, that she “did not, in fact, commit ․ any of the lesser-included offenses,” Applicant's Elizondo claim necessarily fails. Kussmaul, 548 S.W.3d at 641. There is no reason, in my view, to engage in a complicated balancing of all of the evidence to resolve Applicant's Elizondo claim. Cf. ante at 42–97 (Richardson, J., concurring).

VIII. Response to Judge Parker’s Concurring Opinion

“It is an old but true cliche that a picture is worth a thousand words.” Reese v. State, 33 S.W.3d 238, 248 (Tex. Crim. App. 2000) (Keller, P.J., dissenting); see also ante at 2 (Parker, J., concurring). So, too, is the naked scare tactic employed by the concurring opinion's use of Mariah's autopsy photographs. The concurring opinion posits that Mariah “was beaten to death,” that “[b]ruising and other injuries could be seen across the children's entire body,” and that “none” of the “versions” of Applicant's “fall from a stairway” story “can explain the widespread nature of the injuries” that Mariah suffered. Ante at 1–2 (Parker, J., concurring). Judge Parker then asserts that Judge Richardson’s “comprehensive concurring opinion delves into the detail on why Applicant's claims lack merit,” and she “highly recommend[s] reading it.” Id. at 2.⁷

But contrary to Judge Parker’s assertions, several of Applicant's expert witnesses who submitted affidavits attached to Applicant's habeas application refute Judge Parker’s position entirely. The thrust of Applicant's expert testimony, as described in part previously, discusses Mariah's history of falls, the high likelihood that a head injury caused her death, and DIC as a cause of Mariah's widespread bruising. Applicant's expert testimony makes Applicant's theory about an accidental fall—and the suppressed Brady evidence in this case—all the more important.

a. The alternate explanation for the bruising: Disseminated Intravascular Coagulation, or DIC — Dr. Janice Ophoven 8

Dr. Ophoven reviewed the medical records in this case and made several key observations. Dr. Ophoven noted that Mariah had a prior history of traumatic brain injury. At trial, evidence showed that Mariah would throw herself to the floor and often hit herself on the head in doing so. Roughly six months before her death, Mariah's doctor recommended orthopedic shoes to align her feet. Mariah also began receiving physical therapy for her legs once a week. CPS records admitted at trial from when Mariah was in a foster home also showed that Mariah needed “one on one supervision” because “she [was] not strong enough [and] she fel [sic] down very often.” On March 22, 2006, Mariah was involved in a documented fall with loss of consciousness while Mariah was at daycare. Mariah had been playing on a “rainbow child climber” and had lost her balance and fallen, causing her to hit her head and lose consciousness. Dr. Ophoven noted that Mariah's autopsy showed “evidence of microscopic remote bleeding in the brain parenchyma,” and that a “prior injury could very well have made Mariah more vulnerable to a subsequent head injury.”

Dr. Ophoven then examined the evidence of Applicant's accidental fall theory. Noting that “Dr. Farley testified than an accidental fall was conclusively excluded as a potential cause of [her] findings,” Dr. Ophoven stated “that the nature of the child's fall was not well understood or even investigated in this case, and no assessment of the likely injury potential was undertaken.” In fact, Dr. Ophoven averred that the “death investigation was inadequate for a case of this nature,” noting that “[n]one” of the “[w]itness statements indicat[ing] that Mariah had overt signs and symptoms of illness in the days preceding her death” were “taken into account in accessing her injuries and cause of death.”

Regarding Mariah's autopsy, Dr. Ophoven first made the following key observations:

Although the brain showed microscopic evidence of edema, the brain weight was not significantly higher than what is normal for a child Mariah's age. In fatal traumatic brain injury there is typically evidence of severe brain swelling with herniation or significant amount of intracranial blood. The neuropathology did not indicate severe brain swelling but instead documented hypoxic ischemic injury which is not specific for traumatic brain injury. The neuropathology examination also indicated that Mariah had enlarged cerebral ventricles which suggests an underlying condition that may reflect reasons for her delayed development, this also may have been related to her prior brain injury.

Furthermore, Dr. Ophoven noted that the autopsy revealed that Mariah suffered from Disseminated Intravascular Coagulation, or DIC. In Dr. Ophoven's view, “DIC is critical to the evaluation of the bruising at autopsy,” the same bruising that Judge Parker asserts cannot be explained by anything but significant abuse. As Dr. Ophoven explains, bleeding associated with DIC “can be confused with abuse and can greatly complicate an autopsy. Individuals with DIC experience bleeding into the skin and surface soft tissues (termed purpura) that can be interpreted as bruising, with an appearance and distribution that can be mistaken for abuse.”

DIC can also explain Dr. Farley's observations of contusions to both Mariah's lungs and her right kidney. Dr. Farley testified that these contusions are evidence of abuse, “punches or stomps—or slams.” But as Dr. Ophoven explains, “DIC may also cause organ damage with bleeding with minimal pressure.” In fact, “no trauma is necessary for organ damage and bleeding in the context of DIC. DIC can cause spontaneous bleeding in these and other organs. Additionally, CPR efforts, especially by inexperienced and/or distressed individuals, like family members, may have been the cause of inadvertent injury or exacerbation of existing injuries such as what was observed here.”

Dr. Ophoven also addressed Dr. Farley's bottom-line conclusion that Mariah's death was caused by an abusive event in the 24 hours prior to her death. Dr. Ophoven noted that, in support of her claim, Dr. Farley testified “that the lack of hemosiderin-laden macrophages indicates an injury interval of 24 hours.” But Dr. Ophoven plainly states that Dr. Farley's assertion “is not correct” because “hemosiderin-laden macrophages can take up to several days to appear.” In other words, “[u]sing hemosiderin-laden macrophages to time an injury to a precise 24 hours is inaccurate and misleading.”

b. More on DIC —Dr. Michael Laposata 9

Dr. Laposata, who serves as the chairman of the department of pathology at the University of Texas Medical Branch-Galveston, has a clinical expertise in the field of blood coagulation, with a special expertise in the diagnosis of hypercoagulable states (coagulation disorders). Dr. Laposata reviewed Mariah's medical records and asserts that the “presence of fibrin thrombi in body tissues [noted in Mariah's autopsy] is consistent with DIC.” DIC, in turn,

can cause significant and widespread bleeding throughout the body: DIC can cause bleeding around the brain, eyes, within organs, and can cause organ damage. Patients with DIC can experience profound bruising throughout their body. This bruising can develop in minutes after an accidental injury and the bruises can enlarge greatly. DIC, and related bruising, also can develop or present days after an accidental injury. In patients with DIC, routine handling at home or in a hospital setting can cause significant bruising. It is not possible to tell the difference between a bruise from DIC and a bruise from abuse.

(Emphasis added). Dr. Laposata further warns that “[i]n the context of DIC, doctors should not claim, without further investigation, that bleeding is due to violent trauma if another cause, such as infection, is present.” This is because “bleeding can occur spontaneously, with no trauma at all, or with very minor trauma. When a patient has DIC it may be difficult or impossible to differentiate bleeding attributable to the DIC from bleeding attributable to trauma or other causes.”

Finally, like Dr. Ophoven, Dr. Laposata disputed Dr. Farley's testimony. Dr. Laposata averred that “[s]cientific literature shows that both hemosiderin deposits and the presence of microphages can take longer than two days to develop post-injury” and that “[o]ther literature shows even longer and more variable intervals.”

c. DIC as applied to Mariah — Dr. Harry Davis 10

Dr. Davis was the attending physician at the hospital in Harlingen that Mariah was transported to on the night of her death. Dr. Davis avers that “Mariah's body temperature was elevated when it was taken” that evening, “being well over 100 degrees Fahrenheit.” The temperature was taken at the hospital, when Mariah “had already been in cardiopulmonary arrest for quite some time.” To Dr. Davis, this indicated that Mariah “was battling an infection at the time of her death.” Moreover, “[s]eeing an elevated temperature in a child who died from trauma is highly unusual.” For Dr. Davis, “[t]he presence of active infection at the time of Mariah Alvarez's death suggests alternate medical explanations for the bruising and internal bleeding that should have been explored.”

d. But what about the alleged bitemark? — Dr. Adam Freeman

Judge Parker’s photographic parade of horribles includes, in her view, “injuries” of “bite marks.” Ante at 1 (Parker, J., concurring). Dr. Adam Freeman submitted a declaration attached to Applicant's habeas application. Dr. Freeman is a licensed dentist who is board certified by the American Board of Forensic Odontology (and a former President of the ABFO). Dr. Freeman reviewed the evidence in Applicant's case to reach the following conclusions.

Dr. Freeman first stresses that the “scientific community's understanding of bitemark evidence has shifted significantly as a result of new research and through the impartial review of the technique by a number of scientific bodies, as well as due to an ever-growing number of wrongful convictions based on bitemark evidence.” Dr. Freeman also notes that a “subjective method like bitemark analysis is reliable only if, as a threshold matter, when presented with the same evidence, examiners of similar training and experience ․ reach the same conclusions.” For example, a validity study that Dr. Freeman highlights confirms that “even experienced, board-certified forensic dentists cannot reliably answer the threshold inquiry in bitemark analysis—whether the injury at issue is or is not a bitemark—rendering the discipline unreliable from the outset.”

Regarding the alleged bitemark in this case, Dr. Freeman asserts that has “seen numerous examples of circular or halfmooned injuries—not dissimilar to the wounds at issue here—that both laypeople and forensic odontologists have mischaracterized as human bitemarks, when the wounds were actually caused by a range of inanimate objects, even a child's toy or a piece of fencing.” In fact, Dr. Freeman notes, “contact with any circular, hard object to the human body can cause a wound that may appear to be consistent with a human bitemark.”

At trial, Dr. Farley testified that the injuries on Mariah's back were human bitemarks and that they were characterized as such by a forensic odontologist. Dr. Freeman asserts that this trial testimony “is without any scientific basis.” As to Dr. Farley's testimony that the abrasions on Mariah's back were “[b]ites with raking,” Dr. Freeman says this testimony “is likewise unscientific” and “inflammatory ․ amount[ing] to gross speculation.” Lastly, Dr. Freeman characterizes Dr. Farley's testimony that the bitemarks were attributable to a human adult as “scientifically indefensible.”

e. And what about the testimony of fractures? — Dr. Christopher Sullivan 11

At trial, Dr. Farley testified about a fracture to Mariah's left humerus. Dr. Farley characterized the fracture as spiral, up to two weeks old, and evidence of “battered child syndrome.” Specifically, Dr. Farley testified:

Q: Typically, how would a [spiral] fracture occur?

A: Usually, it's from tugging on the arm, or twisting the arm, basically.

Q: And I can only assume that for a child, or an adult, a fracture would be a painful injury, would it not?

A: Yes, it would.

Q: Would that be something that the child would not [sic] complaining of, if she has a prior fracture of the arm?

A: She should have been complaining of pain to that arm.

Dr. Sullivan disputes Dr. Farley's conclusion. In Dr. Sullivan's view, the fracture to Mariah's humerus “is not a spiral fracture.” (Original emphasis). This is so because

[a] spiral fracture line looks like the line on a barber pole on x-rays. In fact, this fracture is an incomplete long oblique fracture line that does not go all the way through the bone. This is consistent with the fracture healing at the upper end of the bone where the fracture line starts. The bone did not break all the way through. So the humerus bone and the arm would continue to move like a normal humerus. It would be tender to palpation, but she would be able to move the arm easily. She could easily have produced this injury to herself. It could be extremely difficult to identify that the arm was broken. Toddler's fractures are often mistaken for non-accidental trauma by people who are not familiar with accidental fractures in this age group.

Dr. Sullivan also concludes that Dr. Farley's testimony has no “specificity for non accidental-trauma.” In Dr. Sullivan's experience, “[a]mbulatory children get spiral fractures in a number of ways. Just a basic fall on the arm from a standing position or kids playing rough with each other could result in a spiral fracture.” Moreover, Dr. Sullivan characterized Dr. Farley's testimony that Mariah's fracture was a “painful injury” and that she “should have been complaining of pain in that arm” as “misleading and inaccurate.”

In sum:

The left humerus fracture in this case is not specific for abuse and is instead entirely consistent with having an accidental cause, such as a fall while walking. While the fracture would likely cause some pain initially, that pain would subside and a child of her age could continue to use her arm in daily activities without experiencing pain. Fractures of these kind are common among toddlers. There is nothing about the nature of this fracture that is indicates that it was the result of an intentional act or abuse.

f. Bringing it all together: The medical expert evidence renders the Arreola Report even more consequential in this case 12

Judge Parker asserts that Applicant's theory of an accidental fall could not “explain the widespread nature of the injuries.” Ante at 2 (Parker, J., concurring). At the time of trial, Judge Parker would have been correct. Applicant had nothing to support her theory of an accidental fall as a plausible cause of Mariah's death. But this was so because the State suppressed favorable and material evidence that would have given Applicant's theory the corroboration it needed to make the difference between conviction and acquittal: the Arreola Report. And the Arreola Report conceivably would have led to the development of the foregoing expert evidence. All of this evidence renders Judge Parker’s assertion, now, inaccurate.

The declarations by Applicant's expert witnesses establish that the accidental fall could have caused the widespread bleeding and bruising on Mariah that Dr. Farley attributed to “abuse.” Dr. Ophoven and Dr. Laposata both assert that Disseminated Intravascular Coagulation, or DIC, is an alternative explanation for bruising supported by the presence of fibrin thrombi noted in Mariah's autopsy. Furthermore, Dr. Ophoven states that DIC also explains the contusions to Mariah's organs that Dr. Farley testified were evidence of “punches or stomps—or slams.” Both Dr. Ophoven and Dr. Laposata's declarations are supported by observations made by Dr. Davis the night of Mariah's death at the hospital. Dr. Davis stated that Mariah had an abnormally high body temperature, indicating that she was battling an infection. For him, “[t]he presence of active infection at the time of Mariah Alvarez's death suggests alternate medical explanations for the bruising and internal bleeding that should have been explored.”

Furthermore, Dr. Freeman and Dr. Sullivan strongly dispute the medical accuracy of Dr. Farley about the “bitemark” and the fracture to Mariah's humerus. Dr. Sullivan asserts that Dr. Farley was plainly incorrect when she testified that the fracture was a spiral fracture, indicating twisting of Mariah's leg. Furthermore, Dr. Sullivan states that Dr. Farley's testimony lacks “any specificity for non-accidental trauma,” because the type of fracture to Mariah's humerus is common amongst toddlers and “[a]mbulatory children get spiral fractures in a number of ways. Just a basic fall on the arm from a standing position or kids playing rough with each other could result in a spiral fracture.” Dr. Freeman, for his part, asserts that Dr. Farley's trial testimony “that the injuries on Mariah's back were human bitemarks and that they were characterized as such by a forensic odontologist is without any scientific basis.” As to Dr. Farley's testimony that the abrasions on Mariah's back were “[b]ites with raking,” Dr. Freeman says this testimony “is likewise unscientific,” and “inflammatory ․ amount[ing] to gross speculation.” Lastly, Dr. Freeman characterizes Dr. Farley's testimony that the bitemarks were attributable to a human adult as “scientifically indefensible.”

Why does this all matter? The State's theory at trial—the theory that Judge Richardson and Judge Parker now repeat—was that Applicant was abusive and neglectful and that she inflicted a fatal wound to Mariah's head in the twenty-four hours before Mariah's death. Applicant's theory at trial was that Mariah died from complications following an accidental fall. The medical evidence presented by Applicant shows that the injuries that the State's expert, Dr. Farley, attributed to “abuse” were equally attributable to non-abuse causes, if not more so. This makes the Arreola Report even more consequential in this case. The Arreola Report contained evidence supporting Applicant's theory of an accidental fall, evidence that—had it been disclosed, investigated, and properly developed—would have supported Applicant's defense and rebutted the State's theory of abuse. And that is precisely the conclusion that the State conceded in this case and that the habeas court found in its recommendations.

In the end, Mariah's death was—and remains—tragic. It should not be taken lightly. But Applicant was convicted of capital murder and sentenced to death for intentionally or knowingly causing her death. The prosecution suppressed evidence that supported Applicant's theory that Mariah instead died from an accidental fall, rather than from an act by Applicant. The State conceded Brady error before the habeas court. The habeas court concluded that the State's concession of error was supported by the record and recommended that this Court grant Applicant post-conviction habeas relief under Brady. Because this conclusion is supported by the record, this Court should follow it. We err not to do so.

IX. Conclusion

Applicant has resided on death row since 2008. For seventeen years she has maintained her innocence while this Court and the federal courts rejected her appeals. Before we granted Applicant a stay of execution in 2022, a bipartisan group of 103 members of our State's Legislature described this case as a “miscarriage of justice.” Ed Pilkington, Texas mother set for execution – yet evidence suggests she did not kill her child, The Guardian (2022), https://tinyurl.com/4n7yppcp (last visited Sept. 23, 2026).¹³ Five of the jurors from Applicant's trial have since called for a reprieve. Johnny Galvan Jr., Opinion: I voted to sentence Melissa Lucio to death. I was wrong., Houston Chronicle (2022), https://tinyurl.com/yeybtpnf (last visited Sept. 23, 2026).

As a Judge on this Court has previously quoted:

[T]he penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.

Roberson, 726 S.W.3d at 292 (Richardson, J., concurring) (quoting Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976)). Applicant claims that the State suppressed favorable material evidence in violation of Brady v. Maryland. The State concedes error. The habeas court, who was also the trial judge for Applicant's capital trial, agrees with the parties and finds that the State suppressed evidence in violation of Brady and that Applicant is entitled to a new trial. Not only are these recommendations entitled to at least some deference from this Court, but the findings are supported by the record. In my view, Applicant has met her burden for postconviction habeas relief. I would defer to the habeas court's findings. The Court does not. Instead, the Court states, without explanation, that Applicant fails to meet her burden. Applicant at least deserves a more thorough explanation from this Court for why it rejects the habeas court's findings and recommendation. The people of the State of Texas deserve as much as well. Respectfully, but regretfully, I dissent.

Attachment

Appendix A

Appendix A (Cont'd)

Appendix B

Appendix B (Cont'd)

FOOTNOTES

1.   Unless otherwise specified, all subsequent references to articles in this order refer to the Texas Code of Criminal Procedure.

1.   (33 RR 64-65, 99).

2.   (33 RR 85).

3.   (33 RR 86).

4.   (33 RR 85, 99-102).

5.   (33 RR 99-100).

6.   (33 RR 92).

7.   (33 RR 93).

8.   (33 RR 89-90). A CPS investigation report later characterized the bruising as covering “over 90% of [Mariah's] body.” Florence Arreola's Investigation Report (Writ at 2310).

9.   A more complete discussion of Mariah's injuries is discussed in a subsequent section discussing the autopsy.

10.   (33 RR 95).

11.   (33 RR 86-87, 90-91).

12.   (33 RR 100-102).

13.   (33 RR 68).

14.   (33 RR 64-65).

15.   (33 RR 65).

16.   (33 RR 67-68).

17.   Id.

18.   (33 RR 67).

19.   (33 RR 69-70). Officer Mendiola thought it odd that Applicant never asked if she could ride in the ambulance with the child. (33 RR 78).

20.   (33 RR 72, 77). A third officer, Officer Javier Villareal, testified to the same observations: Applicant was calm and only cried when relatives arrived and interacted with her. (33 RR 145-146). In comparison, Robert Alvarez, Mariah's father, was “sobbing” and “crying a lot” while alone by a tree. (33 RR 146).

21.   (33 RR 70, 76).

22.   (33 RR 70, 77). The Lucio family had just finished moving to the new residence. Police later inspected the stairwell of the prior residence but found no signs indicating someone had fallen there recently.

23.   (33 RR 147).

24.   (33 RR 69-71).

25.   (33 RR 70-71).

26.   Dr. Vargas observed “tenting” as a sign of dehydration. “Tenting” is seen where the skin is pulled up but doesn't go straight back down due to lack of water. (32 RR 75-76).

27.   (32 RR 71).

28.   (32 RR 71).

29.   Id.

30.   (32 RR 76-77).

31.   (32 RR 76).

32.   Id.

33.   (32 RR 74).

34.   Id. On habeas, Applicant disputes the conclusion that these wounds were bite marks.

35.   (32 RR 75).

36.   (32 RR 85).

37.   (32 RR 84).

38.   (32 RR 86). “I don't see a single area that would be consistent with the results of resuscitation.” Id.The body will develop what is called lividity and the blood—let's say the body is face up. Some of the blood will trickle down to the bottom. So when you turn the body over, it's all, confluently, a different color. But that's not a bruise; that's lividity.Id.

39.   (32 RR 85). The autopsy report will be discussed in a subsequent section.

40.   (32 RR 79).

41.   (32 RR 36-37).

42.   (32 RR 26-27).

43.   (33 RR 39-42).

44.   (32 RR 24-25; 33 RR 16-17).

45.   (33 RR 148).

46.   (33 RR 36-37).

47.   Id. Applicant was allowed to use the restroom and to smoke a cigarette per her request. (33 RR 49); WR-72,702-05 Exh. 45 at 1093.

48.   (32 RR 32-33).

49.   (32 RR 27). At trial, Texas Ranger Escalon, who arrived sometime after the interview had begun, also testified to his own observations of Applicant's demeanor. (33 RR 114-115). Upon entering the office, he noted that Applicant did not make eye contact and had her head down in a “slouched appearance.” (33 RR 115). Based on his experience, Ranger Escalon testified: “So right there and then, I knew she did something. And she was ashamed of what she did, and she had a hard time admitting to the officers what had occurred.” (33 RR 115).

50.   (32 RR 28); see (33 RR 148) (testimony of Officer Javier Villareal stating Applicant was not a suspect when she was initially being interviewed).

51.   (33 RR 35).

52.   (33 RR 50).

53.   Applicant initially claimed the event happened on Friday, but then corrected herself to Thursday. This will be discussed in a subsequent section.

54.   (1 Writ CR 938-945) (Melissa Lucio Interrogation transcript).

55.   Id.

56.   (32 RR 25).

57.   (33 RR 54).

58.   (33 RR 47).

59.   (33 RR 53).

60.   (33 RR 6-8).

61.   (33 RR 7).

62.   (33 RR 7, 58-59, 127-28).

63.   (32 RR 43-44).

64.   (33 RR 22).

65.   (33 RR 21, 48-50).

66.   (33 RR 49, 130).

67.   (33 RR 44).

68.   (33 RR 12). Both Applicant and her husband later admitted to cocaine use in the days leading up to Mariah's death. Florence Arreola's Investigation Report (4th Supp. 2 Writ CR 2310). See infra note 115 (discussing cocaine metabolite found in Mariah's blood).

69.   (33 RR 25).

70.   (33 RR 149).

71.   Id.

72.   (33 RR 149-50).

73.   (33 RR 154).

74.   (35 RR 96).

75.   (35 RR 97).

76.   (35 RR 94-95).

77.   (35 RR 97).

78.   (35 RR 101).

79.   Id.

80.   (35 RR 100).

81.   (35 RR 102).

82.   Id.

83.   (35 RR 105-06). Sonia attempted to attribute the bruising that she never noticed to the rough physical play of Mariah's older brothers. (35 RR 103-04). However, she also admitted that she never saw Mariah's brothers hurt Mariah. (35 RR 103-104). Moreover, Sonia initially admitted she never saw Mariah complain to any adults (including Sonia) that Mariah's brothers had hurt her. (35 RR 103-104). On redirect examination, however, Sonia contradicted herself by saying she saw Mariah's older siblings hurting Mariah and causing her to cry. (35 RR 111-112). However, when confronted with Applicant's confession to all of the injuries except the scratch on Mariah's face, Sonia denied that it was possible. (35 RR 115).

84.   (34 RR 10). Licensed as a physician since 1994, Dr. Farley is Board Certified in anatomical, clinical, and forensic pathologies. Per her testimony, Dr. Farley averages around 300 autopsies per year including an average of 30-40 every year involving children. (34 RR 5-9).

85.   (34 RR 10-11).

86.   (34 RR 11-12).

87.   (34 RR 11).

88.   (34 RR 53).

89.   Id.

90.   (34 RR 55-56).

91.   (34 RR 14, 19); St. Exh. No. 26 (photo of bruising to the face).

92.   (34 RR 20).

93.   (34 RR 14, 20); St. Exh. No. 30 (photo of scalp showing areas of missing hair).

94.   (34 RR 14).

95.   (34 RR 20).

96.   (34 RR 16-17).

97.   (34 RR 15).

98.   Id.

99.   (34 RR 15, 32-33).

100.   (34 RR 17, 32-33). Because of the dragging, Dr. Farley concluded that the bitemark was forensically unmatchable. (34 RR 33). We have since found bitemark matching evidence to be unreliable as a sole source of identification. See Ex parte Chaney, 563 S.W.3d 239, 276-77 (Tex. Crim. App. 2018). Dr. Farley's conclusion predates this Court's finding on that subject.

101.   (34 RR 17).

102.   St. Exh. 36.

103.   (34 RR 18-20).

104.   (34 RR 33).

105.   (34 RR 38).

106.   (34 RR 21-22).

107.   (34 RR 22-24).

108.   (34 RR 24-25); St. Exh. 36.

109.   (34 RR 24-25).

110.   St. Exh. 36 (emphasis added). Dr. Farley's description of the hemorrhages as “multifocal” indicates bleeding from multiple origin points on the brain.

111.   (34 RR 22-24, 25, 26-27); St. Exh. 36.

112.   (34 RR 22-24).

113.   (34 RR 22-24, 26-27).

114.   (34 RR 35-36). Although this was an evidence-based estimate and not a pure guess, Dr. Farley acknowledged that using “[m]icroscopic sections aren't always reliable” for determining the age of injury. (35 RR 54-55, 59). Nevertheless, it was the “best we can approximate, from the microscopes.” (34 RR 59).

115.   St. Exh. 36. For further examination by a specialist, Dr. Farley submitted Mariah's brain, dura mater, and spinal cord to Dr. Stephen J. Nelson, a forensic neuropathologist. Dr. Nelson's report, though originally incorporated into the autopsy report by Dr. Farley, was objected to at trial. Thus, these portions were redacted from the Dr. Farley's autopsy report. (34 RR 44-46)On habeas, the report (though obviously reviewed and discussed by a number of Applicant's experts) was never formally entered into the record as evidence to be considered by this Court. Nevertheless, a copy of Dr. Nelson's findings can be found as an attachment to one of the State's pleadings filed on April 21, 2022.Dr. Nelson, conducting both a gross and histological (microscopic) examination, observed multiple massive cerebral hemorrhages (subdural, intradural, and subarachnoid hemorrhages) in multiple locations in both hemispheres of the brain. In addition to rapid bleeding, Dr. Nelson also noted a side-to-side midline shift of the midbrain and life-threatening mechanical compression caused by massive swelling. All of the hemorrhages were still in their “acute” phase meaning that the life-threatening injuries had been inflicted very recently and had not yet had time to heal.

116.   (34 RR 28-29).

117.   Id.

118.   (34 RR 28).

119.   (34 RR 29).

120.   St. Exh. 36.

121.   Id.

122.   (34 RR 58).

123.   (34 RR 31).

124.   See St. Exh. 36 (“Eye pathology (please see Eye Pathology Report): A. Traumatic iris pigmentation of anterior lens capsule. B. Bilateral fixed retinal folds. C. Bilateral disruption internal limiting membrane. D. Bilateral perinural hemorrhage. E. Findings highly suggestive of non-accidental trauma.”). The Eye Pathology Report portion was redacted from the autopsy report (along with the previously mentioned neuropathology report) upon objection by defense counsel at trial. It mysteriously remains omitted from the record on habeas.However, the habeas record does contain Drs. DeWitt and Sanchez's expert analysis of the case which reviewed the Eye Pathology Report. Per Drs. DeWitt and Sanchez's analysis, Dr. Frank Serbbick, the eye pathologist, “found damage to the internal parts of both eyeballs as well as hemorrhage around the optic nerves.” (4th Supp. 1 Writ CR 1759-60). Dr. Serbbick concluded that those findings were “manifestations of nonaccidental trauma.” Id.

125.   (34 RR 32).

126.   (34 RR 52); see also supra note 124 (discussing the findings of Dr. Serbbick, the eye pathologist).

127.   (34 RR 32).

128.   St. Exh. 36.

129.   Id.; see also (4th Supp. 1 Writ CR 1760). Because cocaine is metabolized quickly once in the body, Drs. DeWitt and Sanchez asserted that amount of metabolite in Mariah's body was consistent with “very recent exposure.” (4th Supp. 1 Writ CR 1773). Drs. DeWitt and Sanchez noted that, during this time, Mariah was in an unresponsive state due to blunt force head trauma while in her parents’ bedroom, both who were documented cocaine users. Id. Drs. DeWitt and Sanchez concluded it was consistent with and even “likely” that Mariah was administered cocaine in an effort to revive her. Id. This is also consistent with Applicant's documented extreme reluctance to seek medical attention for Mariah for fear of being asked questions leading to future legal repercussions.

130.   (34 RR 22-24).

131.   (34 RR 55-56).

132.   St. Exh. 36.

133.   (35 RR 3-6). Dr. Kuri's testimony reached his conclusions after reviewing the autopsy report (minus the eye pathology report) and Dr. Farley's deposition. (35 RR 7-15).

134.   (35 RR 25).

135.   Id.

136.   (35 RR 14, 242-25).

137.   (33 RR 169).

138.   (33 RR 162, 147).

139.   St. Exh. 41.

140.   St. Exh. 41 at *5.

141.   Id.

142.   Id.

143.   Id.

144.   Id.

145.   St. Exh. 41.

146.   Id.

147.   Id.

148.   Id.

149.   Id.

150.   Id.

151.   Id.

152.   Id.

153.   Id.

154.   Id.

155.   Id.

156.   Id.

157.   St. Exh. 41 at *3.

158.   St. Exh. 41 at *3.

159.   St. Exh. 41 at *3-4.

160.   St. Exh. 41 at *4.

161.   Id.

162.   St. Exh. 41 at *6; (33 RR 169-170, 180).

163.   (33 RR 169-170).

164.   (33 RR 170).

165.   (1 Writ CR 8-13).

166.   Id.

167.   Lucio v. State, 351 S.W.3d 878 (Tex. Crim. App. 2011).

168.   Id.

169.   Ex parte Lucio, WR-72,702-02, 2013 WL 105179 (Tex. Crim. App. 2013). Applicant's writs under cause numbers WR-72,702-01, WR-72,702-03, and WR-72,702-04 dealt with motions for leave to file petitions for mandamus.

170.   (4th Supp. 1 CR 4-17), Ex parte Lucio, WR-72,702-02, 2013 WL 105179 (Tex. Crim. App. 2013).

171.   Lucio v. Texas, 566 U.S. 1036, 132 S. Ct. 2712, 183 L.Ed.2d 71 (2012).

172.   Lucio v. Lumpkin, 987 F.3d 451 (5th Cir. 2021) (en banc).

173.   Lucio v. Lumpkin, ––– U.S. ––––, 142 S. Ct. 404, 211 L.Ed.2d 216 (2021).

174.   Applicant's Motion for Stay of Execution to Permit Due Consideration Her First Subsequent Application for Writ of Habeas Corpus, WR-72,702-05 (filed on April, 18, 2022); see also (1 Writ CR 25) (“First Subsequent Application for Writ of Habeas Corpus Filed Pursuant to Article 11.071, § 5 of the Texas Code of Criminal Procedure”).

175.   Order (issued April 25, 2022), WR-72,7202-05; Tex. Code Crim. Proc. 11.071 § 5.

176.   Order (issued April 25, 2022), WR-72,7202-05.

177.   Id.

178.   Id.

179.   (3d Supp. Writ CR 591).

180.   During the pendency of this case, some members of the Texas Legislature have made very public statements in support of Applicant in this case and other pending habeas matters before this Court. See (4th Supp. CR 1186-1321) (transcript of the House Interim Committee on Criminal Justice Reform discussing their “oversight” ability over “the Lucio case” and the “promise” by Texas House representatives to Melissa Lucio after meeting her in person “to do everything we can to push the pause button”). This invasion into the judicial province interferes with this Court's ability to remain impartial over all cases before it and erodes the separation of powers envisioned in our state constitution. Such interferences have included communications with judges on this Court. See Letter from Tex. Crim. App. to parties (Oct. 25, 2024), Ex parte Roberson, No. WR-63,081-05 (Tex. Crim. App. 2025); Letter from Tex. Crim. App. to parties (Sept. 9, 2025), Ex parte Roberson, No. WR-63,081-06 (Tex. Crim. App. 2025). Although free-speech rights belong to all, Justice should not be a popularity contest subject to those who can gain the most influence. Nor should Justice favor those who enjoy resources that most other criminal defendants do not have. Rather, it should be the impartial application of law to a complete and unfiltered evidentiary record by an independent judiciary disinterested in the outcome.

181.   Compare (4th Supp. 1 CR 4-17), Ex parte Lucio, WR-72,702-02, 2013 WL 105179 (Tex. Crim. App. 2013) with (4th Supp. 1 Writ CR 1830-61) and (3d Supp. Writ CR 7-20).

182.   Order (issued June 19, 2024), WR-72,7202-05.

183.   Order (issued April 25, 2022), WR-72,7202-05.

184.   373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

185.   Writ Br. at *iv.

186.   Id. at *52-68.

187.   Id. at *68-77.

188.   Writ Br. at *154.

189.   Id. at *90.

190.   Id. at *144-45. Applicant continues further and correctly asserts that the execution of an “actually innocent” person would violate the Constitution. Id.

191.   373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); see Writ Br. at *151.

192.   Writ Br. at *153.

193.   Id. at *154. There is some discrepancy over the date of the purported stairway fall which will be discussed in a later section.

194.   Id. at *154.

195.   Ex parte Chavez, 371 S.W.3d 200, 207 (Tex. Crim. App. 2012) (internal quotes omitted).

196.   Id.

197.   Id.

198.   Ex parte Coty, 418 S.W.3d 597, 604-605 (Tex. Crim. App. 2014).

199.   Ex parte Reed, 670 S.W.3d 689, 766 (Tex. Crim. App. 2023) (internal citation omitted).

200.   Ex parte Brown, 205 S.W.3d 538, 545 (Tex. Crim. App. 2006).

201.   Ex parte Elizondo, 947 S.W.2d 202, 208 (Tex. Crim. App. 1996); Herrera v. Collins, 506 U.S. 390, 419, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993) (O'Connor, J., concurring).

202.   Ex parte Franklin, 72 S.W.3d 671, 677–78 (Tex. Crim. App. 2002).

203.   Herrera v. Collins, 506 U.S. 390, 400, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993).

204.   Brown, 205 S.W.3d at 545.

205.   Ex parte Miles, 359 S.W.3d 647, 671 (Tex. Crim. App. 2012).

206.   Brown, 205 S.W.3d at 545 (emphasis added).

207.   Ex parte Cook, 691 S.W.3d 532, 561 (Tex. Crim. App. 2024) (quoting Reed, 670 S.W.3d at 744).

208.   Ex parte Miles, 359 S.W.3d 647, 671 (Tex. Crim. App. 2012) (emphasis added).

209.   Cook, 691 S.W.3d at 561 (quoting Ex parte Mayhugh, 512 S.W.3d 285, 296 (Tex. Crim. App. 2016) (plurality opinion)).

210.   Writ Br. at *52.

211.   Id.

212.   Id. at *52 n.20.

213.   (32 RR 81-82).

214.   (32 RR 85).

215.   (32 RR 79).

216.   (4th Supp. 1 Writ CR 1761-62).

217.   Writ Br. at *12 (First Subsequent Application for Writ of Habeas Corpus).

218.   Id. at *5, *12-13. Applicant's brief refers to the event as a “fall down the stairs” and consistently seems to suggest that Mariah fell down all 14 steps of the stairway despite their “new evidence” on habeas that suggests otherwise.

219.   Id. at *12-13. One notes here that a “fall down the stairs” is a timeless and classic explanation for the injuries suffered by family violence and child abuse victims. While genuine instances of falling down the stairs can cause severe injury and even death, a certain amount of skepticism is healthy when it is used to explain bizarre or massively widespread injuries—including suspected bitemarks and areas on the scalp missing hair.

220.   Writ Br. at *100.

221.   (34 RR 33-35).

222.   (34 RR 54-55) (comparing the probable injuries of a typical fall down the stairs with Mariah's injuries).

223.   (33 RR 64-70).

224.   (33 RR 70).

225.   Per Applicant's interview, the only children present at the old apartment during the time of Mariah's alleged fall (while Robert was making trips to the new apartment) were Alexandra, Bobby, Sara, Adriana, and Gabriel. (1 Writ CR 946). When asked if the children saw the fall, Applicant explicitly denied that it was possible because of a lack of line of sight. Id.

226.   (1 Writ CR 938-945) (emphasis added); St. Exh. 3, video 3.1 at 08:40.

227.   (1 Writ CR 943).

228.   Id.

229.   (1 Writ CR 939-41) (emphasis added); St. Exh. 3, video 3.1 at 04:50. A forensic neuropsychological assessment was performed on Applicant to test her memory. She scored within the bounds for average for her age. (4th Supp. 2 Writ CR 2394-95).

230.   (4th Supp. 1 Writ CR 658).

231.   Id.

232.   (1 Writ CR 882).

233.   During a counseling session, Applicant said she did not tell her husband, Robert, about the alleged fall down the several steps until the morning after the alleged fall where they discovered Mariah unconscious. (4th Supp. 1 Writ CR 741).

234.   (4th Supp. 1 Writ CR 882-885).

235.   Writ Br. at *12.

236.   (4th Supp. 1 Writ CR 873).

237.   (1 Writ CR 882-885).

238.   (1 Writ CR 882-885, 869).

239.   (4th Supp. 1 Writ CR 741).

240.   (4th Supp. 1 Writ CR 741).

241.   (4th Supp. 1 Writ CR 741) (emphasis added). The session notes for February 14, 2008, also assert that the alleged fall happened on Friday, February 16, and not on Thursday as she now claims. (1 Writ CR 746). Per the notes:It was at this time that her daughter, Mariah took off outside and feel [sic] down the stair [sic] and injured herself severe enough to have caused her death. She cried as she explained that she was devastated by the accident and by the next day [Saturday], her and her husband were arrested.Id.

242.   (4th Supp. 1 Writ CR 663-64).

243.   Per her interview with CPS on the day of Mariah's death, Alexandra did not witness Mariah's fall. (4th Supp. 2 Writ CR 2308).

244.   (4th Supp. 1 Writ CR 663-664).

245.   (4th Supp. 1 Writ CR 658-59).

246.   See supra note 223 and accompanying text.

247.   Florence Arreola's Investigation Report (4th Supp. 2 Writ CR 2307). This contradicts other testimony that she was with Robert Alvarez (her stepfather) helping him move belongings into the new residence.

248.   (4th Supp. 1 Writ CR 669-71).

249.   (4th Supp. 1 Writ CR 629). It is unclear if “A” is a typo meant to be “I” or if he's referring to his sister, Alexandra, by first initial. If “A” is meant to refer to himself, then Bobby is claiming direct personal knowledge of the fall—which is inconsistent with Applicant's account. If he is claiming that Alexandra saw the fall—that is also inconsistent with both Applicant's and Alexandra's accounts.Bobby also told a CPS investigator that he “remembered” an incident when Mariah fell down some stairs. (4th Supp. 2 Writ CR 2309). After crying for “a little bit,” Mariah then continued playing. Id. This accounting is also inconsistent because it never mentions the arrival of Applicant at the base of the stairway to discover Mariah injured and crying. Id.

250.   Writ Br. at *49. We do not have a copy of the interview with working audio. Nevertheless, for the sake of argument, we will take Applicant's word in her brief that the contents are accurately represented.

251.   (1 Writ CR 946).

252.   (WR-02, 88-89).

253.   (1 Writ CR 941).

254.   Admittedly, the “new evidence” seeking to bolster the factual basis for Mariah's fall is not the “newly discovered evidence” as envisioned under our Actual Innocence standard. Much of it was discoverable through reasonable investigation around the time of trial. See Brown, 205 S.W.3d at 545 (requiring newly discovered evidence that “was not known to the applicant at the time of trial and could not be known to him even with the exercise of reasonable due diligence.”).

255.   Writ Br. at *54.

256.   (1 Writ CR 320) (Affidavit of Dr. Michael Laposata (citing May Chien & Bertil Glader, Disseminated Intravascular Coagulation in Infants and Children, Up-To-Date (last updated Aug. 26, 2025) https://www.uptodate.com/contents/disseminated-intravascularcoagulation-in-infants-and-children.

257.   May Chien & Bertil Glader, Disseminated Intravascular Coagulation in Infants and Children, Up-To-Date (last updated Aug. 26, 2025) https://www.uptodate.com/contents/disseminated-intravascular-coagulation-in-infants-and-children.

258.   (1 Writ CR 311-317, 318-321).

259.   (1 Writ CR 320). Applicant misrepresents Dr. Laposata's affidavit as clear support for a diagnosis of DIC. Writ Br. at *54.

260.   (1 Writ CR 320).

261.   Fibrin, Merriam-Webster’s Medical Desk Dictionary (rev. ed. 2005).

262.   See (34 RR 35-36, 57) (Dr. Farley describing the bruise/hemorrhage healing process).

263.   (1 Writ CR 320). Nevertheless, Dr. Laposta does caution that doctors should be wary of attributing bleeding to violent trauma when coagulation disorders are possible. Id.

264.   (1 Writ CR 314).

265.   (1 Writ CR 315).

266.   (1 Writ CR 315). Dr. Ophoven also disputes whether Mariah's brain was swollen enough to evidence “fatal traumatic brain injury.” (1 Writ CR 315). Dr. Ophoven asserts that “[i]n fatal traumatic brain injury there is typically evidence of severe brain swelling with herniation or significant amount of intracranial blood.” Id. In contrast, Dr. Ophoven points to her observation that “the brain weight was not significantly higher than what is normal for a child Mariah's age.” Id.However, as Dr. Farley noted in her autopsy, Mariah was less than the fifth percentile for her age in body height and approximately at the 30th percentile for her age for body weight. Thus, her brain (even under normal circumstances) would not likely fall within the average weight for her age. Plus, the weight of her brain (which Dr. Ophoven observed was slightly higher than normal for her age) was during a state of severe dehydration. And finally, despite Dr. Ophoven's suggestion to the contrary, Dr. Farley did note a significant amount of blood within and pouring out of the cranial vault. (34 RR 26-27).On a related note, Dr. Ophoven based her conclusion, in part, on a neuropathology report created after Dr. Farley forwarded the brain to Dr. Nelson for further examination. This report (along with the eye pathology report) was originally part of Dr. Farley's autopsy report and presumably supported her autopsy findings. (34 RR 32). However, upon defense objection, it was redacted from the record evidence at trial. See St. Exh. 36, at *7.

267.   “It appears that the nature of the child's fall was not well understood ․” (1 Writ CR 314).

268.   (34 RR 36-37).

269.   Applicant alleges that the paramedics and the emergency room team might have been the cause of much of the bruises including the bruising to Mariah's lungs and right kidney. Writ Br. at *60-61. Applicant alleges that the life-saving protocols such as CPS and their handling of Mariah's body, combined with DIC, are what caused the massive bruising. Id. However, according to the paramedics, Mariah was already clinically dead upon arrival. (33 RR 87). Per Dr. Vargas, after clinical death, the body doesn't develop bruises, but develops lividity instead. (32 RR 86). Because Mariah's heart stopped pumping blood, the mechanics of how her body responds to injury would have been different. (32 RR 86). Finally, Dr. Vargas testified that he accounted for any resuscitation efforts when evaluating Mariah's injuries. (32 RR 87). In his expert opinion, all of Mariah's bruises existed prior to the involvement of EMS: “I don't see a single area that would be consistent with the results of resuscitation.” (32 RR 86-87).

270.   It would be a potentially life-threatening situation due to extensive internal bleeding if a person suffering from a clotting disorder were to experience a spiral fracture or a bite severe enough to leave definitive marks. Here, Mariah experienced both.

271.   Martha E. Laposata & Michael Laposata, Children with Signs of Abuse: When is it Not Child Abuse?, 123 Am. J. Clin. Pathol., at *S124 2005 (Suppl. 1); (4th Supp. 1 Writ CR 1771) (Drs. DeWitt and Sanchez stating: “DIC cannot be conclusively diagnosed because the laboratory studies that are indicated to make the diagnosis cannot reliably be done on postmortem blood.”).

272.   Applicant accuses Dr. Farley of “forensic confirmation bias.” Writ Br. at *105. While some may disagree with her findings, they seem rational enough to at least lie within a zone of reasonable disagreement if not one of greater certainty. The same cannot be said of Dr. Ophoven's findings.

273.   Martha E. Laposata & Michael Laposata, Children with Signs of Abuse: When is it Not Child Abuse?,123 AM. J. Clin. Pathol., at *S120 2005 (Suppl. 1) (citing Nat’l Hemophila Foundation, Types of Bleeding Disorders, https://www.bleeding.org/bleeding-disorders-a-z/types).

274.   (1 Writ CR 317).

275.   (1 Writ CR 317).

276.   According to several of the conflicting narratives submitted in support of Applicant's claim, Mariah's fall happened within 24 hours of her death.

277.   (34 RR 35-36).

278.   (34 RR 54-55).

279.   (34 RR 33-35).

280.   (34 RR 54-55).

281.   Writ Br. at *61.

282.   Id. at *61; (34 RR 30).

283.   (1 Writ CR 338-41).

284.   (1 Writ CR 339).

285.   St. Exh. 36.

286.   (1 Writ CR 339).

287.   (1 Writ CR 340).

288.   (34 RR 29, 58).

289.   Writ Br. at *62; (34 RR 17).

290.   Id. at *63.

291.   Id. at *64; (1 Writ CR 323-34).

292.   (1 Writ CR 325) (citing Nat’l Acad. of Sciences: Strengthening Forensic Science in The United States: A Path Forward 175-76 (Nat'l Acad. Press 2009)).

293.   Nat’l Acad. of Sciences: Strengthening Forensic Science in The United States: A Path Forward 175-76 (Nat'l Acad. Press 2009). Dr. Freeman similarly points to a report from the Texas Forensic Science Commission concluding “there is no scientific basis for stating that a particular patterned injury can be associated to an individual's dentition.” WR-72,702-05 at 329 n.7 (quoting Tex. For. Science Comm’n, Forensic Bitemark Comparison Complaint Filed by National Innocence Project on Behalf of Steven Mark Chaney – Final Report 10 (2016)). In her brief, Applicant similarly quotes to Ex parte Chaney, 563 S.W.3d 239, 258 (Tex. Crim. App. 2018) “(observing that bite mark evidence, ‘which once appeared proof positive of ․ guilt, no longer proves anything’).”

294.   (1 Writ CR 325-28).

295.   (1 Writ CR 331-32).

296.   We note here that Applicant was asked about the bitemarks on Mariah's back by her therapist during a series of confidential interviews while in jail (provided to us by Applicant as part of her habeas application) in addition to other events leading up to her arrest. While she freely discussed every other topic related to her case, the therapist's notes state: “She told me right away that this was the one topic she did not want to talk about and I respected her for it and did not bring it up again.” (1 Writ CR 748).

297.   (1 Writ CR 1057-59); St. Exh. 5, video 1.2 at 00:20-02:44.

298.   Nat’l Acad. of Sciences: Strengthening Forensic Science in The United States: A Path Forward 173 (Nat'l Acad. Press 2009); see also (4th Supp. 1 Writ CR 1763-64) (“In light of the fact that a suspected bitemark was previously observed on another child in the household, a human bite to Mariah cannot be excluded.”).

299.   (33 RR 108-09).

300.   (32 RR 32, 46, 52; 33 RR 113).

301.   Writ Br. at *68.

302.   Id. at *69 (quoting (1 Writ CR 346) (“Declaration of Lisa Feldman Barrett, Ph.D”)).Applicant implicitly claims that any evaluation of credibility based even partly on a subject's physical posture or expression can never have any truth-value. However, if there's no scientifically isolatable “physical signals that express guilt” across all situations, there's also none that express innocence that Applicant can identify to demonstrate her interview credibility and ultimate innocence. Moreover, our entire jury trial system is predicated (at least in part) on jurors watching the body language of witnesses as they testify on the stand and then determining witness credibility based on the juror's individual personal experiences. Accepting Applicant's theory that nobody can ever evaluate another's truthfulness with any level of accuracy would undermine not only our jury system but many of society's foundational assumptions.American jurisprudence on the Fourth Amendment is also dependent on experiential-based evaluations by police officers of the subjects standing before them. While our case law also recognizes the difficulty in isolating precise brightline criteria for the legal standards in finding reasonable suspicion and probable cause, we have recognized that “furtive movements” and other suspicious physical body language (together with other inculpatory factors), when viewed under the totality of the circumstances, can be used to constitutionally justify searches and seizures. See e.g., Sibron v. New York, 392 U.S. 40, 66-67 (1968) (“[D]eliberately furtive actions and flight at the approach of strangers or law enforcement officers are strong indicia of mens rea, and when coupled with specific knowledge on the part of the officer relating the suspect to the evidence of crime, they are proper factors to be considered in the decision to make an arrest.”).Here, Ranger Escalon testified that he was essentially doing just that. In light of the massive bruising to Mariah's entire body, Ranger Escalon testified that all of it being caused by a simple fall down the stairs was not credible. (33 RR 129-30). And it was the job of the jury to evaluate Ranger Escalon's testimony and demeanor, in light of all other evidence presented, and decide whether to believe him or not.

303.   (33 RR 115).

304.   (33 RR 91-93, 100-03).

305.   (33 RR 102).

306.   (33 RR 103).

307.   (33 RR 93).

308.   (33 RR 92).

309.   (33 RR 27).

310.   (32 RR 28).

311.   Writ Br. at *105. Applicant's assertion that there now exists new science (unavailable at the time of her trial in 2008) that shows her past history of domestic violence made her uniquely vulnerable to false confession is questionable at best. Dr. Gudjonsson, one of Applicant's own experts, co-authored a study in 2007 recognizing domestic violence as an already known factor. See (4th Supp. 1 Writ CR 1764) (citing Gudjonsson, G. H., et al., Custodial Interrogation: What are the Background Factors Associated With Claims of False Confession to Police? 18 J. Forensic Psychiatry & Psychology no. 2, 2007, at 266-75).

312.   (1 Writ CR 347; 4th Supp. 1 Writ CR 740-57). In these notes, Applicant admits to substance abuse (including using cocaine) starting at the age of 15 years old. (4th Supp. 1 Writ CR 744).

313.   (4th Supp. 1 Writ CR 742, 744). While the therapist declares in his affidavit that Applicant finally self-reported her past sexual abuse in a “later session,” the session notes where Applicant presumably reports the sexual abuse do not appear to be in the record.

314.   Per the “background information” section of Applicant's psychological evaluation report:Although an interview collecting background information regarding the client's upbringing and history of trauma exposure was collected, and prior records were reviewed, by this examiner, those details will not be reiterated in this report as that information has been presented in detail in other documentation of Ms. Lucio's case.(4th Supp. 1 Writ CR 755).

315.   (4th Supp. 1 Writ CR 762, 765). The report further concluded that “This neuropsychological profile could have provided significant mitigating evidence at the time of Ms. Lucio's trial and sentencing and could potentially have provided information for the special plea of not guilty by reason of mental disease or defect.” (4th Supp. 1 Writ CR 765).

316.   Writ Br. at *109 (quoting Keith A. Findley, et al., Shaken Baby Syndrome, Abusive Head Trauma, and Actual Innocence: Getting it Right, 12 Hous. J. Health L & Pol’y 209, 257-60 (2012).

317.   Id. at *109.

318.   Lynumn v. Illinois, 372 U.S. 528, 537, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963).

319.   Tex. Code Crim. Proc. arts. 38.21 & 38.22.

320.   Smith v. State, 779 S.W.2d 417, 427 (Tex. Crim. App. 1989).

321.   Colorado v. Connelly, 479 U.S. 157, 164, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986).

322.   Id.

323.   Id. at 165. “Our involuntary confession jurisprudence is entirely consistent with the settled law requiring some sort of state action to support a claim of violation of the Due Process Clause of the Fourteenth Amendment.” Colorado v. Connelly, 479 U.S. 157, 165, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986).

324.   Lopez v. State, 610 S.W.3d 487, 494 (Tex. Crim. App. 2020).

325.   Creager v. State, 952 S.W.2d 852, 855 (Tex. Crim. App. 1997).

326.   Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011).

327.   In Miranda, we [the U.S. Supreme Court] noted that the advent of modern custodial police interrogation brought with it an increased concern about confessions obtained by coercion. Because custodial police interrogation, by its very nature, isolates and pressures the individual, we stated that even without employing brutality, the third degree or other specific stratagems, ․ custodial interrogation exacts a heavy toll on individual liberty and trades on the weakness of individuals. We concluded that the coercion inherent in custodial interrogations blurs the line between voluntary and involuntary statements, and thus heightens the risk that an individual will not be accorded his privilege under the Fifth Amendment ․ not to be compelled to incriminate himself. Accordingly, we laid down concrete constitutional guidelines for law enforcement agencies and courts to follow. Those guidelines established that the admissibility in evidence of any statement given during custodial interrogation of a suspect would depend on whether the police provided the suspect with four warnings.Dickerson v. United States, 530 U.S. 428, 434-35, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000).

328.   Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011), reh'g denied.

329.   Lucio v. Texas, 566 U.S. 1036, 132 S.Ct. 2712, 183 L.Ed.2d 71 (2012); Lucio v. Lumpkin, ––– U.S. ––––, 142 S. Ct. 404, 211 L.Ed.2d 216 (2021).

330.   (Writ at 935-36, 1100).

331.   When Ranger Escalon attempted to leave and switch with another detective, Applicant told him, “I don't want to talk to anyone else.” St. Exh. 4, video 1.2 at 13:03.

332.   Oregon v. Elstad, 470 U.S. 298, 305, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985); Dickerson v. United States, 530 U.S. 428, 434-35, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000); Carter v. State, 309 S.W.3d 31, 35 (Tex. Crim. App. 2010).

333.   Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011), reh'g denied.

334.   While it is the responsibility of police investigators to train in and operate under the most modern and current best practices, it is also understood that the field of interviewing suspects and witnesses with reliable veracity is an inexact and evolving field. See Writ at 397, 400 (“Affidavit of Dr. Gisli H. Gudonjonsson” asserting that “[t]he science of the psychology of confessions, including false confessions, has steadily grown over the past 40 years.” (citations omitted)). While one is open to considering whether a confession is false, it would be unfair to label the actions of specific investigators as “coercive” under modern standards if they were acting in good faith under approved practices of the time. Moreover, it would be ridiculous to hold investigators to the standards of a linguistic expert when asking a subject a question. Even well-trained lawyers will ask poorly worded questions especially in situations where the understanding of a given situation is still developing.

335.   Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011), reh'g denied (citing Miranda, 384 U.S. at 455-57, 86 S.Ct. 1602).

336.   Lopez v. State, 610 S.W.3d 487, 494 (Tex. Crim. App. 2020).

337.   The corroborative nature of the surrounding evidentiary record compared to Applicant's video-recorded admissions was emphatically recognized by the habeas judge (who was also the trial judge) in his initial “Findings of Fact and Conclusions of Law” filed on July 23, 2012. (4th Supp. 1 CR 7-11), Ex parte Lucio, WR-72,702-02, 2013 WL 105179 (Tex. Crim. App. 2013). This contextual understanding of the evidentiary record seems to have been completely and inexplicably ignored in the most recent “Findings of Fact and Conclusions of Law on Applicant's First Subsequent Application for a Writ of Habeas Corpus” filed on October 16, 2024.

338.   June Thompson was an immediate next-door neighbor to Applicant and her family at the old apartment on Madison. Thompson babysat Mariah on at least one occasion and helped watch over Applicant's other children. (Writ at 730).

339.   Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

340.   Id.

341.   United State v. Bagley, 473 U.S. 667, 675, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).

342.   Kyles v. Whitley, 514 U.S. 419, 436-37, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (citing Bagley, 473 U.S. at 675 n.7, 105 S.Ct. 3375).

343.   Bagley, 473 U.S. at 675 n.7, 105 S.Ct. 3375.

344.   Kyles, 514 U.S. at 437, 115 S.Ct. 1555.

345.   Stickler v. Greene, 527 U.S. 263, 263, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999).

346.   Kyles, 514 U.S. at 434, 115 S.Ct. 1555.

347.   Id.

348.   Id. at 434-35.

349.   Id. at 435.

350.   Harm v. State, 183 S.W.3d 403, 406 (Tex. Crim. App. 2006); State v. Kelly, 204 S.W.3d 808, 819 (Tex. Crim. App. 2006).

351.   The record demonstrates that there was a certain level of disagreement between Applicant's trial counsel and Applicant's habeas counsel. (3rd Supp. CR 95-06) (letter from Applicant's trial counsel responding to bar grievance filed by Applicant's habeas counsel).

352.   Writ Br. at *153-54.

353.   (4th Supp. 1 CR 7-11), Ex parte Lucio, WR-72,702-02, 2013 WL 105179 (Tex. Crim. App. 2013). See also supra note 337 and accompany text and chart (demonstrating that Applicant's video-recorded admissions are corroborated by wholly independent evidence).

354.   Writ Br. at *158. I note here that the record reflects that prosecutors for the State acted in good faith with regard to the disclosure of CPS records. As observed in the habeas court's initial Findings of Fact and Conclusions of Law:53. The State did not violate Brady v. Maryland with its disclosure of certain CPS documents, as the State was in a continuous collection and disclosure of these records. Those records that were not produced until shortly before trial were a result of CPS’ failure to comply with this Court's order to produce them. The State did not intentionally or knowingly prevent the production of evidence; the inadvertent delay was the result of the voluminous and complex nature of the documents sought, along with the vagaries of inter-agency requests. Applicant has demonstrated no harm by the date of the final disclosure; no statement appears in either the Application itself nor the record that defense counsel felt he was unable to adequately review the material and use it at either guilt/innocence or punishment.54. With regard to the disclosure of Maggie's house interviews, the State advised defense counsel and the Court that it did not contain Brady material and therefore need not be disclosed under Brady. This Court conducted an in camera inspection and agreed. Nonetheless, the interviews were eventually turned over to defense counsel. Even if all the material were Brady material, and even if it were disclosed in an untimely fashion, Applicant has not demonstrated prejudice by the delay, and is therefore not entitled to a new trial.(4th Supp. 1 CR 15), Ex parte Lucio, WR-72,702-02, 2013 WL 105179 (Tex. Crim. App. 2013).

355.   (4th Supp. 2 Writ CR 2307).

356.   (4th Supp. 2 Writ CR 2299). Portions of the report have been redacted.

357.   (4th Supp. 2 Writ CR 2307-08). Applicant also points to Investigator Arreola's “interviews” of Rene, Richard, and Robert (“Bobby”) Alvarez. Investigator Arreola's notes indicate that Rene and Richard told her that they didn't want to speak about Mariah or her death. (4th Supp. 2 Writ CR 2308). Investigator Arreola's notes also indicate that Bobby merely acknowledged that Mariah had died and that he wanted to return to his siblings. Id.

358.   (4th Supp. 2 Writ CR 2307).

359.   (4th Supp. 2 Writ CR 2308).

360.   One would imagine that Applicant is at least somewhat familiar with her own character traits and would be aware of other family members who know her well enough to testify towards them.

361.   (35 RR 94-95).

362.   (35 RR 94-95).

363.   (35 RR 95-96). One notes that many of the behaviors described here, especially from a “cycle of violence” point of view, are consistent with Mariah's injuries.

364.   (35 RR 96-97).

365.   Id.

366.   (33 RR 154). Although the two accountings of the phone call have divergent points, they do generally corroborate that Applicant was not the image of non-violence and non-aggression that she asserts.

367.   (4th Supp. 2 Writ CR 2310).

368.   (1 Writ CR 1085-86; 1104-06, 1107-08).

369.   (1 Writ CR 1058-59).

370.   (1 Writ CR 1101-04).

371.   (4th Supp. 2 Writ CR 2300).

372.   (4th Supp. 2 Writ CR 2300).

373.   (4th Supp. 2 Writ CR 2304; 2310).

374.   (4th Supp. 2 Writ CR 2305).

375.   (4th Supp. 2 Writ CR 2305).

376.   See supra note 354 (habeas judge describing the disclosure of CPS records including the Maggie's House interview recordings).

377.   Kyles v. Whitley, 514 U.S. 419, 435, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995).

378.   See supra notes 215-249 and accompanying text.

379.   Id.

380.   This is discussed in a prior section. See supra note 242 and accompanying text.

381.   (32 RR 28; 33 RR 120)

382.   (4th Supp. 2 Writ CR 2300) (“PA's [Parents] provided an inadequate explanation for the injuries.”).

383.   (32 RR 85).

384.   (32 RR 79).

385.   (34 RR 33-35). In her testimony, Dr. Farley further indicated that typical falls are not the “tumble bumble, Dick Van Dike looking thing” that could cause bruising all over the body. Id.

386.   (34 RR 54-55).

387.   (4th Supp. 1 Writ CR 657-59, 660-61, 662-64, 665-67); see also (4th Supp. 1 Writ CR 668-71) (Declaration of Daniella Lucio made on June 13, 2018).

388.   (4th Supp. 1 Writ CR 658-59); see Writ Br. at 154,

389.   (4th Supp. 1 Writ CR 663).

390.   Id.

391.   (4th Supp. 1 Writ CR 658).

392.   (34 RR 22-24; 35 RR 24-25).

393.   (34 RR 36-37).

394.   (1 Writ CR 934-959); (32 RR 53-55).

395.   (4th Supp. 1 Writ CR 658-59, 663-64).

396.   Writ Br. at 161. Applicant's brief only offers Daniella's subjective observation from her statement as evidence supporting this fact.

397.   (1 Writ CR 340); see supra note 281 and text. One also notes that Applicant's expert disputed (after reviewing only x-rays) whether the fracture was indeed a spiral fracture. (1 Writ CR 338-41). This claim was made in spite of the fact that Dr. Farley visually confirmed the presence of a spiral fracture by removing Mariah's left humerus and physically examining it. St. Exh. 36.

398.   (33 RR 91).

399.   (33 RR 146).

400.   (4th Supp. 2 Writ CR 2375).

401.   (4th Supp. 2 Writ CR 2370). In their respective affidavits, Thompson refers to Guerrero as her then-husband while Guerrero refers to Thompson as his then-girlfriend.

402.   (4th Supp. 2 Writ CR 2370-72).

403.   (37 RR 130-48).

404.   (4th Supp. 2 Writ CR 2375-76). Guerrero also asserted that while he was not close with the Lucio family, Applicant's husband was Guerrero's friend's cousin and occasionally they had beers together. (4th Supp. 2 Writ CR 2375).

405.   (4th Supp. 2 Writ CR 2370-72). Certain aspects of Guerrero's declaration suggest that it may not be entirely accurate. For instance, Guerrero inaccurately states that Applicant and her family “moved out 3 to 4 days before Mariah died.” Id. at 2375. Thompson's affidavit also suggests that Guerrero is prone to willful blindness due to a hesitancy to get involved or enter into a conflict with his neighbors and friends. Id. at 2372.

406.   (4th Supp. 2 Writ CR 2377-88).

407.   (4th Supp. 2 Writ CR 2379).

408.   Id.

409.   Findings of Fact and Conclusions of Law on Applicants First Subsequent Application for Writ of Habeas Corpus, at *13.

410.   Id. at *19-20.

411.   See supra note 337 and accompany text and chart.

412.   Lucio v. State, 351 S.W.3d 878, 884-85 (Tex. Crim. App. 2011) (quoting (36 RR 24-36)). In their arguments, the State simply argued the reverse. (36 RR 41-49).

413.   As noted earlier, witness testimony that Mariah was observed suffering symptoms of severe blunt-force head trauma (the other leg upon which the habeas court's recommendation relies) has little bearing on whether the trauma was caused by abuse or an accidental fall. Those symptoms are consistent as evidence for both. See supra notes 384-92 and accompanying text.

414.   (4th Supp. 1 CR 7-11), Ex parte Lucio, WR-72,702-02, 2013 WL 105179 (Tex. Crim. App. 2013). See also supra note 337 and accompany text and chart (demonstrating that Applicant's video-recorded admissions are corroborated by wholly independent evidence).

415.   Id.

416.   Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995).

417.   Id. at 435.

418.   Ex parte Cook, 691 S.W.3d 532, 561 (Tex. Crim. App. 2024).

419.   Id.

420.   Ex parte Torres, 943 S.W.2d 469, 473-74 (Tex. Crim. App. 1997).

421.   In cases where the State concedes error (leaving the submissions “one-sided” and non-adversarial), the courts are left “vulnerable to being misled, whether by affirmative misrepresentations or by half-truths that deceive through their incompleteness.” Wharton v. Superintendant Graterford SCI, 95 F.4th 140, 149 (3d Cir. 2024). Thus, in such non-adversarial cases, “the court is entitled to expect an even greater degree of thoroughness and candor.” Id. Despite an eleventh-hour chance to do so, the parties failed to provide the thoroughness this court and the gravity this case deserves. See Commonwealth v. Brown, 358 A.3d 469 (Penn. 2026) (finding the State's concession of error undeserving of deference and denying relief after the State, waiving all evidentiary hearings, urged post-conviction relief to an applicant convicted of murder despite substantial material gaps in the evidence allegedly exculpating him).Even though we are the ultimate habeas fact-finder, this Court typically defers to the habeas court below and give great weight to concessions of error by the State so long as the record supports it. Ex parte Carter, 721 S.W.3d 341, 352 (Tex. Crim. App. 2025); Ex parte Thompson, 153 S.W.3d 416, 417-18 (Tex. Crim. App. 2005). Nevertheless, this Court is not bound by any findings, conclusions, or recommendations of the habeas court below especially if this Court's independent review of the habeas record does not support them. Ex parte Navarro, 538 S.W.3d 608, 613 (Tex. Crim. App. 2018).As even the U.S. Supreme Court once stated,The public trust reposed in the law enforcement officers [prosecutors in this case] of the Government requires that they be quick to confess error when, in their opinion, a miscarriage of justice may result from their remaining silent. But such a confession does not relieve this Court of the performance of the judicial function. The considered judgment of the law enforcement officers that reversible error has been committed is entitled to great weight, but our judicial obligations compel us to examine independently the errors confessed․ [O]ur judgments are precedents, and the proper administration of the criminal law cannot be left merely to the stipulation of parties.Young v. United States, 315 U.S. 257, 258-59, 62 S.Ct. 510, 86 L.Ed. 832 (1942).

422.   State v. Kelly, 204 S.W.3d 808, 819 (Tex. Crim. App. 2006).

423.   Ex parte Elizondo, 947 S.W.2d 202, 205-207 (Tex. Crim. App. 1996).

1.   I agree that Lucio deserves a thorough explanation from this Court as to the denial of her claims and that Lucio should be afforded habeas relief. I disagree, however, to the extent he rejects Lucio's actual innocence claim without a carefully wrought review from this Court in view of the trial court's superior knowledge of this case. Dissenting Op. at 68–77 (Finley, J., dissenting).

2.   947 S.W.2d 202, 206 (Tex. Crim. App. 1996).

3.   State ex rel. Holmes v. Hon. Court of Appeals for Third Dist., 885 S.W.2d 389, 397 (Tex. Crim. App. 1994); see also Ex parte Wood, 2025 WL 2148862, at *19.

4.   The habeas court's findings of fact and conclusions of law state the following:Applicant's 2019 case file review revealed to Applicant's post-conviction counsel the existence of witness statements that had not been disclosed prior to and during trial. These witness statements corroborate Applicant's defense theory that Mariah's cause of death was head trauma sustained during an accidental fall rather than intentional abuse.․23. The parties agree and the Court finds that the cumulative impact of the suppressed evidence detailed above is material because intentional infliction of serious bodily injury resulting in death is an element of murder, and the suppressed evidence, viewed cumulatively and in light of the record as a whole, provides evidentiary support for the defense that Mariah's head injury was accidental, and counters the State's evidence that the injuries could have only been the result of intentional abuse.․26. Further, the Court finds that the State's failure to disclose evidence impeded defense counsel from fully investigating the cause of Mariah's death and from adequately challenging the prosecution's investigation in the case and the eventual theory of fatal abuse the prosecution presented at trial. Had defense counsel been aware of evidence corroborating Mariah's fall and observations of her declining condition that is consistent with the presentment of DIC, defense counsel could have provided the jury with evidence of a non-abuse cause of Mariah's bruising, to counter the State's evidence that the injuries could have only been the result of intentional abuse.․64. While Dr. Sullivan concluded the fracture was not a spiral fracture at all, as the medical examiner had testified, he also explained that, even if it were, identifying a fracture as “spiral” does not indicate abuse; spiral fractures can result from simple falls. See Affidavit of Christopher Sullivan (Sullivan Dec.) Ex. 8 at 1-2. Dr. Sullivan explained, “there is nothing about the nature of [Mariah's] fracture that indicates it was the result of an intentional act or abuse.” See Affidavit of Christopher Sullivan (Sullivan Dec.) Ex. 8 at 2-3. Thus, this Court finds that the trial testimony by the State's expert asserting this injury was caused by abusive trauma was incorrect. This injury could be due to an accidental or non-accidental cause. See Affidavit of Christopher Sullivan (Sullivan Dec.) Ex. 8 at 1-2; see also Joint Advisory and Notice of Filing Exhibit, Exhibit A at 14 (Dr. Dewitt Rep.).

5.   The habeas judge also stated on the record: “I don't think this is a death case ․” and explained his doubts that Lucio intentionally committed the actus reus.

6.   The habeas court's findings of fact and conclusions of law state the following:130. Having engaged in the analysis required by Elizondo and its progeny, this Court finds that Applicant has satisfied her burden and produced clear and convincing evidence that she is actually innocent of the offense of capital murder pursuant to Tex. Penal Code §§ 19.02(b)(1), 19.03(a)(8), for “intentionally and knowingly” causing Mariah's death by “striking, shaking, or throwing [Mariah] with [her] hand or foot or other object.” 1 CR 9.131. This court finds that no rational juror could have convicted Applicant of capital murder without the State's unconstitutional presentation of Dr. Farley, the medical examiner's false testimony that physical abuse was the only explanation for Mariah's death, that Mariah had adult-sized bitemarks on her body, and that the abuse that purportedly caused Mariah's death had to have occurred within twenty four hours of her death, making it impossible for Applicant's defense that Mariah's health declined after an accidental fall two days earlier. Additional scientific evidence that the jury never heard, which further casts significant doubt on Applicant's guilt includes: (1) evidence that Mariah's injuries were entirely consistent with head trauma incurred by an accidental fall and declining health over the two days before her death ․ [.]

1.   To be clear, the State conceded error only on Claim 5—the Brady claim. As the habeas record reflects, the elected District Attorney of Cameron County told the habeas court the following:[O]n December 20, 2022 and again on January 11, 2024, I signed agreed findings of facts and conclusions of law agreeing that [Applicant is] entitled to habeas corpus relief from her conviction and sentence as represented in claim number five which is a Brady claim.I am not in agreement and will not be able to agree to the other remaining three.When the habeas court inquired further, the State reaffirmed that it only agreed on Applicant's fifth claim and not the others.

2.   The concurring opinion states that “Investigator Arreola's notes indicate that Rene and Richard told her that they didn't want to speak about Mariah or her death.” Ante at 103, 83 S.Ct. 1194 n.357 (Richardson, J., concurring). The very next page of the Arreola Report contains the rest of Robert and Rene's statements, as reproduced in this opinion.

3.   Newberry also alleged that Morris was ineffective because he had a conflict of interest with Newberry because Morris previously represented Deon Moore, one of Newberry's co-defendants.

4.   District Attorney Warren conceded error on Newberry's Brady claim and his false testimony claim.

5.   Sadly, the Judge that delivered the Court's opinion in Cook, which recognized all of these monumental principles, is the same Judge that abandons these principles today in a lengthy, mistaken concurring opinion.

6.   I have already addressed that in making this statement, the concurring opinion misapplies the Supreme Court's directive that we consider materiality cumulatively and not item-by-item. See supra, at 43–46.

7.   I “highly recommend” reading the “comprehensive” response to Judge Richardson’s concurring opinion, see supra at 43–80.

13.   The letters by the House of Representatives and the Senate legislators are available at https://tinyurl.com/5xh8ywuj and https://tinyurl.com/jkdnbwva, respectively. The signatories include legislators from across the State and the political spectrum, from House Speaker Pro Tempore Joe Moody to then-Representative Mayes Middleton, now-Texas Senator and the Republican nominee for Attorney General.

Per curiam.

Richardson, J., filed a concurring opinion in which Parker, J., joined. Parker, J., filed a concurring opinion in which Richardson, J., joined. Schenck, P.J., Newell, J., and Finley, J., filed dissenting opinions. Walker, J., dissented.